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2012 DIGILAW 1105 (BOM)

Madhav Shriramji Khadse v. Rajiv Ramrao Ghatol

2012-06-21

M.L.TAHALIYANI

body2012
JUDGMENT M.L. Tahaliyani, J. 1. Heard Mr. P.S. Wathore, learned Counsel for the applicant, Mr. A.M. Ghare, learned Counsel for non-applicant No.1 and Mr. C.N. Adgokar, learned Additional Public Prosecutor for nonapplicant No.2. Admit. Heard finally by consent of learned Counsel for the parties. 2. The applicant was the original accused in Summary Criminal Complaint No.1288/2008 decided by the Judicial Magistrate First Class, Akola. The applicant was acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act by order dated 15.02.2010. The nonapplicant No.1/original complainant filed an appeal before the Sessions Court, Akola under proviso to Section 372 of the Criminal Procedure Code. The said appeal was admitted by the learned Additional Sessions Judge, Akola on 06.4.2010 by following order: Heard Admit. Call R & P,. Issue bailable warrant of Rs.15,000/- against respondent No.1 returnable on (r/o) on dated 10.05.2010 notice to respondent No.2. 3. On receipt of notice from the Sessions Court, the applicant appeared before the Sessions Court and applied for dismissal of appeal by his application dated 12.07.2010. The prayer clause of his application runs as under : It is therefore humbly prayed that the Hon'ble Court be pleased to allow the application and dismiss the appeal for not obtaining leave to prefer the appeal to meet the ends of justice. 4. The learned Additional Sessions Judge heard both the sides and rejected the application on the ground that the appeal was filed under proviso to Section 372 of the Criminal Procedure Code and the provisions of Section 378 of the Criminal Procedure Code were not applicable to the appeal admitted by the learned Additional Sessions Judge. The reasons given by the learned Additional Sessions Judge could be found at Para 9 of the said order, which are as under : It is pertinent to note that present appeal has been filed against the order of acquittal as per the amended Section 372 of the Criminal Procedure Code. I, therefore, find that the present appeal is perfectly maintainable in view of the amended provision. Moreover, I also find that no prior leave is necessary to be obtained by the complainant before preferring the appeal. The objection raised by the original accused/respondent for the maintainability of the appeal is thus, devoid of merit and deserve to be rejected. 5. I, therefore, find that the present appeal is perfectly maintainable in view of the amended provision. Moreover, I also find that no prior leave is necessary to be obtained by the complainant before preferring the appeal. The objection raised by the original accused/respondent for the maintainability of the appeal is thus, devoid of merit and deserve to be rejected. 5. The applicant has filed the present application under Section 482 of the Criminal Procedure Code challenging the order dated 06.4.2010 by which appeal was admitted and further challenging the order dated 16.8.2010 by which the plea of the applicant that leave was needed for filing appeal was dismissed by the learned Additional Sessions Judge. I have heard learned Counsel Mr. Wathore for the applicant, learned Counsel Mr. Ghare for non-applicant No.1 and learned Additional Public Prosecutor Mr. C.N. Adgokar for non-applicant No.2. In my considered view, considering the two judgments of this Court, first in the matter of M/s Top Notch Infotronix (I) Pvt. Ltd. vs. M/s Infosoft Systems & Ors. reported at 2011 ALL MR (Cri) 2312 and second in the matter of Shantaram s/o Laxman Tande. vs. Dipak s/o Madhav Gaikwad reported at 2011 ALL MR (Cri) 3473, no lengthy discussion is necessary to dispose of the present application. From the above stated two judgments, it is abundantly clearly that the complainant in a complaint case filed under Section 138 of the Negotiable Instruments Act is not a victim within the meaning of Section 2(wa) of the Criminal Procedure Code. As such the appeal filed before the Sessions Court under proviso to Section 372 of the Criminal Procedure Code against the order of acquittal in a complaint case for the offence punishable under Section 138 of the Negotiable Instruments Act was totally misconceived. The learned Additional Sessions Judge should have returned the appeal for being presented before the appropriate Forum. In view thereof, this application is being disposed of by passing following order. (i) The orders dated 06.4.2010 and 16.8.2010 passed in Criminal Appeal No.38/2010, by the learned Additional Sessions Judge, Akola, are set aside. (ii) The learned Additional Sessions Judge is directed to return the appeal to non-applicant No.1 for being presented before the appropriate forum. Criminal application stands disposed of in above terms.