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2000 DIGILAW 353 (KAR)

T. v. NAGARAJ VS B. ANJANAPPA

2000-05-30

G.PATRI BASAVANA GOUD

body2000
G. PATRI BASAVANA GOUD, J. ( 1 ) ON a complaint filed by the respondent under Section 200 of the Cr. P. C. , alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881 by the petitioner-accused, the petitioner- accused was proceeded against in CC No. 4319 of 1994 by the learned II Additional Chief Metropolitan Magistrate, Bangalore City, and by the judgment and order dated 11-10-1995, was acquitted of the said offence. ( 2 ) AS against the above said judgment and order of acquittal, the respondent-complainant preferred Revision Petition under Section 397 of the Cr. P. C. at Criminal Revision Petition No. 254 of 1995 before the learned XXIII Additional City Civil and Sessions Judge, Bangalore. The learned Sessions Judge entertained the said Revision Petition and allowed the same by his order dated 29-11-1997, setting aside the order of acquittal passed by the learned Chief Metropolitan Magistrate, and convicting the petitioner-accused of the offence punishable under Section 138 of the Negotiable Instruments Act, and sentencing him to imprisonment for two months, and to pay a fine of Rs. 25,000/-, in default, to undergo imprisonment for three months, a sum of Rs. 17,000/-, out of the fine amount being directed to be paid to the respondent complainant. ( 3 ) AS against the said order of the learned Sessions Judge, the petitioner has now approached this Court under Section 397 of the Cr. P. C. Merits are not gone into, and the Revision Petition is being allowed, on accepting the plea of the petitioner-accused on a question of law. It is in the following circumstances. ( 4 ) AS said earlier, the case was proceeded as one instituted on a complaint by the complainant-respondent under Section 200 of the Cr. P. C. It is in the said case that the learned Magistrate recorded the order of acquittal. Chapter XXIX of the Cr. P. C. deals with the appeals. Section 378 of the Cr. P. C. occurring in the said Chapter deals with appeal in case of acquittal. Sub-section (4) of Section 378 of the Cr. P. C. It is in the said case that the learned Magistrate recorded the order of acquittal. Chapter XXIX of the Cr. P. C. deals with the appeals. Section 378 of the Cr. P. C. occurring in the said Chapter deals with appeal in case of acquittal. Sub-section (4) of Section 378 of the Cr. P. C. provides that, where an order of acquittal is passed in any case instituted upon a complaint, and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the high Court. The proper course for the respondent-complainant to be followed on the learned Magistrate passing an order of acquittal therefore, was to file an appeal against the order of acquittal before the High court under Section 378 of the Cr. P. C. after obtaining special leave under sub-section (4) of Section 378 of the Cr. P. C. An appeal thus lay against an order of acquittal. Where an appeal lies, and where no appeal is brought, then, sub-section (4) of Section 401 of the Cr. P. C. prohibits entertaining of any revision at the instance of the party who could have appealed. The learned Sessions Judge, therefore, could not have entertained revision at the instance of the complainant as against an order of acquittal passed by the learned Magistrate, because the complainant could have appealed under Section 378 (4) of the Cr. P. C. against the order of acquittal, but, had not brought any such appeal before the High court. The impugned order passed by the learned Sessions Judge, therefore, is without jurisdiction, and same needs to be set aside. ( 5 ) ORDER of conviction is passed by the learned Sessions Judge for the first time in revision by the impugned order. It is only as against a conviction recorded by the Sessions Judge on a trial held by the Sessions judge that an appeal lies to the High Court under Section 374 (2) of the cr. P. C. By the impugned order, it is not as though the learned Sessions judge has convicted the petitioner-accused on a trial held by him. The conviction is recorded in course of a revision proceeding under Section 397 of the Cr. P. C. By the impugned order, it is not as though the learned Sessions judge has convicted the petitioner-accused on a trial held by him. The conviction is recorded in course of a revision proceeding under Section 397 of the Cr. P. C. The said order, therefore is not appealable under section 374 of the Cr. P. C. Therefore, this revision under Section 397 of the Cr. P. C. is maintainable. ( 6 ) PETITION is therefore allowed, and the impugned order is set aside, thereby setting aside the order of conviction of the petitioner-accused for the offence under Section 138 of the Negotiable Instruments Act, 1881, and the sentence passed by the learned Sessions Judge in that regard. ( 7 ) BY an interim order of this Court dated 28-7-1998, the petitioner- accused was directed to deposit a sum of Rs. 17,000/- in the Trial Court. It is submitted that the said amount had been so deposited. The said amount shall be refunded to the petitioner-accused. --- *** --- .