JUDGMENT : HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY 1. Learned counsel for the parties are present. 2. The arguments of this case had commenced yesterday. However, a point of maintainability of the present revision petition has been raised which is required to be considered by this Court. 3. This case arises out of complaint case no C/1 Case No. 2137 of 2018 under section 138 of Negotiable Instrument Act and the accused was convicted vide judgment dated 14.02.2020 against which he filed an appeal before the Court of Sessions Judge, East Singhbhum at Jamshedpur which was numbered as Cr. Appeal No. 42 of 2020. By the impugned order passed by the Sessions Court, the Criminal Appeal has been allowed and judgement of conviction has been set-aside. Consequently, the complainant who is also the victim, has filed the criminal revision challenging the judgement of acquittal passed by the Appellate Court. 4. Learned counsel for the opposite party no.2 has referred to judgment dated 25.01.2022 passed by the Hon’ble Supreme Court in a case of Joseph Stephen and others versus Santhanasamy and others reported in 2020 Live Law (SC) 83 and submits that in the said case the order of acquittal was passed by the Appellate Court and the victim has filed revision before the High Court. The Hon’ble Supreme Court framed various issues and ultimately held that the revision was not maintainable. The learned counsel has referred to paragraph 10.2 of the aforesaid judgment. The learned counsel has submitted that in view of the aforesaid facts and circumstances, this petition may be held as not maintainable and be disposed in terms of paragraph 10.2 of the aforesaid judgment. 5. Learned counsel for the petitioner has referred to the judgment passed by this Court in Tuklal Yadav versus the State of Jharkhand and another with analogous cases passed by the Full Bench of this Court reported in 2018 SCC Online Jhar 1193 and has submitted that various issues were framed by this Court at paragraph no. 8 and has referred to issue no. 4 as decided by Hon’ble Full Bench vide paragraph no. 46(4) and submits that the requirement of leave to appeal would arise only when the accused has been acquitted by the trial court. 8 and has referred to issue no. 4 as decided by Hon’ble Full Bench vide paragraph no. 46(4) and submits that the requirement of leave to appeal would arise only when the accused has been acquitted by the trial court. He has submitted that in the present case the opposite party no.2 has been acquitted by the appellate court and there is no question of any second appeal and therefore, revision is the only remedy. The learned counsel has also relied upon the judgment passed by this Court in Cr.M.P. No. 70 of 2010 and has submitted that in view of the judgment passed by the Hon’ble Supreme Court in the case of Joseph Stephen (Supra) and Mallikarjun Kodagaliv State of Karnataka reported in (2019) 2 SCC 752 , the matter was again considered by framing the following issues: - “This Court after having considered the submission advanced by the learned counsel for the parties is required to consider as to whether the judgment rendered by Hon’ble Apex Court in the case of Joseph Stephen (Supra) and Mallikarjun Kodagali (Supra) will be said to have prevail over the judgment rendered by the Full Bench of this Court in Tuklal Yadav (Supra).” He submits that it has been ultimately held in paragraph 13 that, the law laid down by the Full Bench in the case of Tuklal Yadav (Supra) still holds good and, therefore, the petitions filed for seeking leave to file an appeal under section 378 (4) of Cr.P.C. was held to be maintainable. Learned counsel submits that the said judgment was referring to appeal to be filed by the victim/complainant where the order of acquittal has been passed by the Trial Court. Learned counsel has submitted that in the present case the peculiar circumstances is that the order of acquittal has been passed by the appellate Court and, therefore, the present criminal revision application is maintainable. 6. Learned counsel has submitted that there is no provision of any second appeal against the judgement of acquittal passed by the appellate court under the Cr.P.C. and in absence of such provision the appeal would not lie before this Court at all when the judgment passed by the learned trial court was already subject matter of appeal before the appellate court which is impugned in the present case. Findings of this Court. 7. Findings of this Court. 7. This revision arises out of complaint case filed under section 138 of the Negotiable Instruments Act, 1881; the petitioner is the complainant and also the victim; the opposite party no.2 was convicted by the trial court and has been acquitted by the Appellate Court of Sessions and the complainant/victim is aggrieved by the judgement of acquittal passed by the Appellate Court. 8. The matter regarding the filing of appeal against acquittal is primarily covered by the provisions of Section 372 and 378 of Cr.P.C. The said provisions are quoted hereunder: “372. No appeal to lie, unless otherwise provided.—No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code by any other law for the time being in force: Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. 378. Appeal in case of acquittal.—(1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),— (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal— (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision. (3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon 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. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).” 9. Section 378(1) (a) applies only when the offence is cognizable and non bailable. 10. As per the provisions of section 378 (1)(b) of Cr.P.C. the State Government may in any case direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than the High Court not being order passed under section 378 (1)(a) of Cr.P.C. or an order of acquittal passed by the Court of Sessions in Revision Application. This is subject to the provisions of section 378(3) of Cr.P.C. 11. Section 378(2) makes similar provision for presenting appeal at the instance of the Central Government have been made with regard to offences which have been investigated by the Delhi Special Police Establishment or by any other agency empowered to make investigation into an offence under any Central Act other than Cr. P.C. 12. Thus, at the instance of State Government under Section 378(1) (b) and at the instance of the Central Government under Section 378(2) (b) there is a provision of appeal to High Court from an original or appellate order of acquittal passed by any Court other than a High Court not being an order under clause (a) of section 378(1) /section 378(2) subject to leave by the High Court under section 378(3) of Cr. P.C. Section 378(3) provides that no appeal to the High Court under Section 378(1) or 378(2) shall be entertained except with the leave of the High Court. The order of acquittal passed by the Appellate Court can be subject matter of appeal to the High Court if the aforesaid conditions are satisfied. 13. Section 378(4) provides that if such an order of acquittal is passed in any case instituted upon a complaint, the High Court on an application made to it by the complaint may grant special leave to appeal from the order of acquittal and upon such leave the complainant may present such an appeal to the High Court. Further section 378(5) provides the period of limitation for filing an application under 378(4) and section 378(6) provides that in case application under section 378(4) is refused, no appeal from an order of acquittal shall lie under 378(1) or under 378(2) of Cr. P.C. 14. Section 378(1) (a) does not apply in this case as the offence under section 138 of Negotiable Instruments Act, 1881 is non-cognizable and bailable. 15. The present case is to be seen in the light of section 378(1) (b) read with section 378(4) and also proviso to section 372 as it arises out of a complaint case and the complainant is also the victim. In the present case the judgement of acquittal has been passed by the Appellate Court and the complainant is aggrieved by the judgement of acquittal and has filed the present revision petition. 16. In the present case the judgement of acquittal has been passed by the Appellate Court and the complainant is aggrieved by the judgement of acquittal and has filed the present revision petition. 16. In the judgment passed by the Hon’ble Supreme Court in the Case of Subhash Chand Vs. State reported in (2013) 2 SCC 17 , the matter was arising out of an order of conviction passed by Magistrate in complaint case under the provisions of Prevention of Food Adulteration Act, 1954 and the State sought to file an appeal against acquittal. The short point which fell for consideration before the Hon’ble Supreme Court is as under: “6. The short point which arises for consideration in this appeal is whether in a complaint case, an appeal from an order of acquittal of the Magistrate would lie to the Sessions Court under Section 378(1)(a) of the Code or to the High Court under Section 378(4) of the Code.” 17. In Subhash Chand (supra), the Hon’ble Supreme Court ultimately answered the same vide paragraph 23 by concluding that a complainant can file an application for special leave to appeal against that order of acquittal of any kind only to the High Court and he cannot file such an appeal in the Session court and therefore, the order impugned holding that the case was not governed by Section 378(4) of the Code was quashed and set aside. Paragraph nos. 19 and 23 of the said judgment are as under: - 19. Sub-section (4) of Section 378 makes provision for appeal against an order of acquittal passed in a case instituted upon complaint. It states that in such case if the complainant makes an application to the High Court and the High Court grants special leave to appeal, the complainant may present such an appeal to the High Court. This sub-section speaks of “special leave” as against sub-section (3) relating to other appeals which speaks of “leave”. Thus, the complainant’s appeal against an order of acquittal is a category by itself. The complainant could be a private person or a public servant. This is evident from sub-section (5) which refers to application filed for “special leave” by the complainant. It grants six months’ period of limitation to a complainant who is a public servant and sixty days in every other case for filing application. Sub-section (6) is important. The complainant could be a private person or a public servant. This is evident from sub-section (5) which refers to application filed for “special leave” by the complainant. It grants six months’ period of limitation to a complainant who is a public servant and sixty days in every other case for filing application. Sub-section (6) is important. It states that if in any case the complainant’s application for “special leave” under sub-section (4) is refused no appeal from the order of acquittal shall lie under sub-section (1) or under sub-section (2). Thus, if “special leave” is not granted to the complainant to appeal against an order of acquittal the matter must end there. Neither the District Magistrate nor the State Government can appeal against that order of acquittal. The idea appears to be to accord quietus to the case in such a situation. 23. In view of the above, we conclude that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file such appeal in the Sessions Court. In the instant case the complaint alleging offences punishable under Sections 16(1) & (1-A) read with Section 7 of the PFA Act and the Rules is filed by complainant Shri Jaiswal, Local Health Authority through Delhi Administration. The appellant was acquitted by the Metropolitan Magistrate, Patiala House Courts, New Delhi. The complainant can challenge the order of acquittal by filing an application for special leave to appeal in the Delhi High Court and not in the Sessions Court. Therefore, the impugned order holding that this case is not governed by Section 378(4) of the Code is quashed and set aside. In the circumstances the appeal is allowed. 18. This court finds that the judgement passed by the Hon’ble Supreme Court in the Case of Subhash Chand (supra) was not dealing with the effect of proviso to section 372 of Cr.P.C. The proviso has been introduced in Cr.P.C. with effect from 31.12.2009 giving unfettered right to the victim to file appeal against an order of acquittal of accused or his conviction for a lesser offence or imposition of inadequate compensation which lies to the Court to which an appeal ordinarily lies against the order of conviction of such court. 19. 19. In the case of Tukalal Yadav(Supra), the Hon’ble full bench of this Court while considering the issue as to which would be the forum for an appeal to be filed by the victim against the judgment of acquittal passed by the trial court in paragraph 16 of the judgement dealt with respect to cases arising out of police cases and with respect to acquittal appeals arising out of acquittal orders/judgments passed by Magistrate in complaint case the findings have been recorded in paragraph 34 as follows:- “34. Having considered the various stands advanced by the learned counsels on this question, taking into consideration the views of the other High Courts, as also the law laid down by the Apex Court, as referred above, and trying to harmonize the provisions of Proviso to Sections 372 of the Cr.P.C., and Section 378 of the Cr.P.C., we propose to answer this question, with respect to appeals arising out of complaint cases, as follows: - a. The complainant, whether the State or a private person, who is also the victim as defined under Section 2 (wa) of the Cr.P.C., if aggrieved by the judgment / order of acquittal passed by the Trial Court, their case is now set at rest by the decision of the Hon’ble Apex Court in Subhash Chandra’s case (supra), and as such, they have the only remedy against the order / judgment of acquittal passed by the Trial Court, to seek special leave of the High Court under Section 378 (4) of the Cr.P.C., and in case the special leave is granted, to file appeal in the High Court itself. In case the special leave is not granted to the private complainant, the appeal even by the State shall be barred in terms of Section 378 (6) of the Cr.P.C. b. Such complainants, even if they are victims as defined under Section 2 (wa) of the Cr.P.C., now cannot take recourse to Proviso to Section 372 of the Cr.P.C. They cannot be allowed two forums of appeal, as argued by learned counsels, and they can also be given only one forum of appeal, as is given to the victims in case of judgment / order of acquittal in police cases. c. In cases the victims are not the complainant, their cases cannot come under Section 378 (4) of the Cr.P.C., as Section 378 (4) clearly speaks about the right of complainant only. Such victims as defined under Section 2 (wa) of the Cr.P.C., can avail the remedy of appeal under the Proviso to Section 372 of the Cr.P.C. In such cases, if the order / judgment of acquittal is passed by the Court of Magistrate, the appeal shall lie to the Court of Session, in which case there shall be no requirement to seek any leave to appeal. If the order / judgment of acquittal is passed by the Court of Session, the appeal shall lie to the High Court, subject to leave to be taken under Section 378 (3) of the Cr.P.C. d. At the same time, we cannot ignore the right of the victim complainant, if such victim complainant is aggrieved by the conviction of the accused for lesser offence, or imposing inadequate compensation. Such appeals shall not be against the judgment / order of acquittal and shall not come within the purview of Section 378 (4) of the Cr.P.C., and are also not covered by the decision of the Apex Court in Subhash Chandra’s case (supra). In such cases, we are of the considered view that the victims as defined under Section 2 (wa) of the Cr.P.C., whether they are complainant or not, shall have the right to appeal under the Proviso to Section 372 of the Cr.P.C. against the judgment / order of convicting the accused for lesser offence, or imposing inadequate compensation. In such cases also, if the order / judgment passed by the Court of Magistrate, the appeal shall lie to the Court of Session, in which case there shall be no requirement to seek any leave to appeal, and if the order / judgment is passed by the Court of Session, the appeal shall lie to the High Court, subject to leave to be taken under Section 378 (3) of the Cr.P.C.” 20. The aforesaid findings have been reiterated in concluding portion of the majority judgement dealing with cases arising out of complaint cases at paragraph 46(4) to 46(8) of the judgement in the following words: - “46: With respect to appeals arising out of complaint cases- (4) The complainant, whether the State or a private person, who is also the victim as defined under Section 2 (wa) of the Cr.P.C., if aggrieved by the judgment / order of acquittal passed by the Trial Court, shall have the only remedy against the order / judgment of acquittal passed by the Trial Court, to seek special leave of the High Court under Section 378 (4) of the Cr.P.C., and in case the special leave is granted, to file appeal in the High Court itself. (5) In case the special leave is not granted to the private complainant, the appeal even by the State shall be barred in terms of Section 378 (6) of the Cr.P.C. (6) Complainants, even if they are victims as defined under Section 2 (wa) of the Cr.P.C., cannot take recourse to Proviso to Section 372 of the Cr.P.C., for challenging the acquittal of the accused. (7) In cases the victims are not the complainant, their cases cannot come under Section 378 (4) of the Cr.P.C. Such victims as defined under Section 2 (wa) of the Cr.P.C., can avail the remedy of appeal under the Proviso to Section 372 of the Cr.P.C. In such cases, if the order / judgment of acquittal is passed by the Court of Magistrate, the appeal shall lie to the Court of Session, in which case there shall be no requirement to seek any leave to appeal. If the order / judgment of acquittal is passed by the Court of Session, the appeal shall lie to the High Court, subject to leave to be taken under Section 378 (3) of the Cr.P.C. (8) The victims as defined under Section 2 (wa) of the Cr.P.C., whether they are complainant or not, shall have the right to appeal under the Proviso to Section 372 of the Cr.P.C. against the judgment / order of convicting the accused for lesser offence, or imposing inadequate compensation. In such cases also, if the order / judgment is passed by the Court of Magistrate, the appeal shall lie to the Court of Session, in which case there shall be no requirement to seek any leave to appeal, and if the order / judgment is passed by the Court of Session, the appeal shall lie to the High Court, subject to leave to be taken under Section 378 (3) of the Cr.P.C.” 21. In this context it is relevant to refer to order dated 16th August 2022 passed in Acquittal Appeal No. 144 of 2019 by a co-ordinate Bench of this Court where it has been held that acquittal appeal by victim is maintainable against an order of acquittal passed by the appellate court. The Acquittal Appeal No. 144 of 2019 is still pending before this court after deciding the issue of maintainability of the appeal. 22. In the Cr.M.P. 71 of 2010 dated 01.03.2023 the Hon’ble Division Bench has reconsidered the full Bench Judgment in the light of the two subsequent judgments passed in the case of Joseph Stephen (Supra) and Mallikarjun Kodagali (supra) and has held that the Full Bench judgment passed by this Court in Tuklal Yadav still holds its foot. 23. This Court finds that in the judgment passed by the Hon’ble Supreme Court in the case of Joseph Stephen (Supra), the case was under the various provision of Indian Penal Code; the trial court had partly acquitted and partly convicted the accused against which both, the victim as well as the convicts, had filed separate appeals and the Appellate Court had acquitted the accused; against order of the Appellate Court a revision application was filed by the victim before the High Court. The concerned High Court in its revisional jurisdiction had set aside the judgment passed by the Appellate Court and restored the judgment passed by the trial court with modification of sentence. The Hon’ble Supreme Court vide paragraph 7 of the judgement framed following three issues for consideration: - 1. Whether the High Court in exercise of the revisional jurisdiction under Section 401 Cr.P.C. is justified in setting aside the order of acquittal and convicting the accused by converting the finding of acquittal into one of conviction? 2. The Hon’ble Supreme Court vide paragraph 7 of the judgement framed following three issues for consideration: - 1. Whether the High Court in exercise of the revisional jurisdiction under Section 401 Cr.P.C. is justified in setting aside the order of acquittal and convicting the accused by converting the finding of acquittal into one of conviction? 2. In a case where the victim has a right of appeal against the order of acquittal, now as provided under Section 372 Cr.P.C and the victim has not availed such a remedy and has not preferred the appeal, whether the revision application is required to be entertained at the instance of a party/victim instead of preferring an appeal? 3. While exercising the powers under sub-section (5) of Section 401 Cr.P.C. treating the revision application as petition of appeal and deal with the same accordingly, the High Court is required to pass a judicial order? 24. In this case, we are concerned with aforesaid issue no. 2 in connection with which the Hon’ble Supreme Court has, inter alia, held as under: - “10. Now so far as issue no.2, namely, in a case where no appeal is brought though appeal lies under the Code, whether revision application still to be entertained at the instance of the party who could have appealed, the answer lies in sub-section (4) of Section 401 Cr.P.C. itself. Sub-section (4) of Section 401 Cr.P.C. reads as under: “(4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.” 10.1 It cannot be disputed that now after the amendment in Section 372 Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C., a victim has a statutory right of appeal against the order of acquittal. Therefore, no revision shall be entertained at the instance of the victim against the order of acquittal in a case where no appeal is preferred and the victim is to be relegated to file an appeal. Even the same would be in the interest of the victim himself/herself as while exercising the revisional jurisdiction, the scope would be very limited, however, while exercising the appellate jurisdiction, the appellate Court would have a wider jurisdiction than the revisional jurisdiction. Even the same would be in the interest of the victim himself/herself as while exercising the revisional jurisdiction, the scope would be very limited, however, while exercising the appellate jurisdiction, the appellate Court would have a wider jurisdiction than the revisional jurisdiction. Similarly, in a case where an order of acquittal is passed in any case instituted upon complaint, the complainant (other than victim) can prefer an appeal against the order of acquittal as provided under sub-section (4) of Section 378 Cr.P.C., subject to the grant of special leave to appeal by the High Court. 10.2 As observed by this Court in the case of Mallikarjun Kodagali (supra), so far as the victim is concerned, the victim has not to pray for grant of special leave to appeal, as the victim has a statutory right of appeal under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like subsection (4) of Section 378 Cr.P.C. in the case of a complainant and in a case where an order of acquittal is passed in any case instituted upon complaint. The right provided to the victim to prefer an appeal against the order of acquittal is an absolute right. Therefore, so far as issue no.2 is concerned, namely, in a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided under Section 372 Cr.P.C. or Section 378(4), as the case may be, the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant, as the case may be, shall be relegated to prefer the appeal as provided under Section 372 or Section 378(4), as the case may be. Issue no.2 is therefore answered accordingly.” 25. Issue no.2 is therefore answered accordingly.” 25. Upon perusal of paragraph 10.2, from the aforesaid judgment, this Court finds that Hon’ble Supreme Court has clearly held that in a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided under Section 372 Cr.P.C. or Section 378(4), as the case may be, the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant, as the case may be, shall be relegated to prefer the appeal as provided under Section 372 or Section 378(4), as the case may be. It has also been held that the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant shall be relegated to prefer an appeal as provided under Section 372 or 378 (4) of Cr.P.C. as the case may be. 26. This Court is also of the view that under the aforesaid circumstances the present revision which has been filed against acquittal of the opposite party no.2 by the Appellate Sessions Court for alleged offence arising out of a complaint case under section 138 of the Negotiable Instrument Act, 1881 is not maintainable. 27. Accordingly, this revision application is dismissed as not maintainable. 28. However, liberty is reserved with the petitioner to take appropriate steps in accordance with law. 29. Upon being approached by the petitioner, the office is directed to return the certified copies of the judgements passed by the concerned courts in these proceedings upon being replaced by a true/photocopy of the such judgments.