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2013 DIGILAW 385 (RAJ)

Mukesh Kumar v. Sameer Khorwal

2013-02-14

ATUL KUMAR JAIN

body2013
JUDGMENT 1. - This is an appeal filed by the complainant Mukesh Kumar in a matter of Section 138, N.I. Act against the order of learned Additional Civil Judge (JD) & Metropolitan Magistrate (N.I. Act Cases) No. 1, Jodhpur dated 6.6.2011 in Criminal Case No. 3860/2009. The learned lower court has acquitted both the accused Sameer Khorwal and Sky Planet Marketing Private Limited from the charge of Section 138 N.I. Act. Delay of 21 days in filing the criminal leave to appeal was condoned under Section 5 of the Limitation Act by this Court by order dated 18.1.2012. 2. According to the amended proviso to Section 372, Cr.P.C., such appeal could have and should have been filed in the court of Sessions Judge, Jodhpur Metropolitan and then after the aggrieved party should have challenged the order of the Sessions Judge, Jodhpur Metropolitan in this Court. 3. After hearing the appellant-complainant on this point, I am of the opinion that though Section 378(4), Cr.P.C. confers jurisdiction of hearing appeal in such type of matters to this Court but amended proviso to Section 372,Cr.P.C. confers jurisdiction to hear such type of appeals in the concerned Sessions court only. It is equally true that where jurisdiction is conferred on two courts, the aggrieved party should ordinarily first approach the inferior court unless exceptional grounds for taking the matter directly before the superior court are made out. 4. In the present matter, the propriety requires that the complainant should have gone to the Sessions Court first and only then after he should approach the High Court. This Court does not encourage the trend of filing of appeals directly before this Court when the matter could have been heard and disposed of by the Sessions Court under proviso to Section 372, Cr.P.C. 5. Resultantly, the application/appeal of the complainant-Mukesh Kumar is hereby returned to the petitioner for presentation before the court of Sessions Judge, Jodhpur Metropolitan. The office shall return the original application/appeal to the petitioner after making proper endorsements on it, after retaining a true copy thereof. The petitioner shall thereafter immediately present the same, if he chooses to do so to the concerned Sessions Judge, who will entertain and decide the same on merits as expeditiously as possible. The complainant is directed to appear before the learned Sessions Judge, Jodhpur Metropolitan, Jodhpur for this purpose on 26.2.2013 at 10.00 a.m. 6. The petitioner shall thereafter immediately present the same, if he chooses to do so to the concerned Sessions Judge, who will entertain and decide the same on merits as expeditiously as possible. The complainant is directed to appear before the learned Sessions Judge, Jodhpur Metropolitan, Jodhpur for this purpose on 26.2.2013 at 10.00 a.m. 6. It is pertinent to mention here that the benefit of limitation will be available to the petitioner for the period consumed in this matter because of pendency of appeal in this Court. 7. Accordingly, the application/appeal of appellant Mukesh Kumar is disposed of.Application/appeal disposed of. *******