Heard learned counsel for appellants and perused the office objection.

2. The appellant is the complainant in C.C. No. 949 of 2014 on the file of I Additional Junior Civil Judge-cum-Judicial Magistrate of First Class, Tanuku, West Godavari District. The said complaint was filed under Section 138 of Negotiable Instruments Act (NI Act) against the respondent/accused. It appears on 20.03.2017, the complainant was absent and process for issuing NBW to the respondent/accused was not deposited and hence, the trial court dismissed the complaint.

3. Aggrieved, the appellant preferred the instant appeal and sought leave of this Court under Sec.378(4) Cr.P.C since the acquittal passed was in a case instituted upon a private complaint.

4(a) The office took an objection as to how the Crl.A (SR) is maintainable which is filed against the order in C.C passed by the Judicial First Class Magistrate, Tanuku. The office objection appears to be that in view of the proviso added to Sec.372 Cr.P.C, the complainant has to file the appeal against the order of the Magistrate before the concerned Sessions Court.

(b) Learned counsel for appellant resubmitted the appeal stating that the same is maintainable before the High Court with the leave. The Registry was not satisfied with the said submission. That is how the matter came to be posted before the Court.

5. As stated supra, the complainant instituted private complaint in C.C.No.949 of 2014 under Section 138 of NI Act and the same was dismissed on 20.03.2017 for non-prosecution due to absence of the complainant. As per Sec.256 Cr.P.C, the dismissal of the complaint due to non-appearance or death of the complainant tantamounts to acquittal of the accused and therefore, the remedy available to the complainant to challenge the said dismissal order is in the form of an appeal. However, no revision is maintainable against the said order of the Magistrate and on this legal aspect, there is no demur and the decision of this Court reported in Veena S. Rajnalkar vs. N.Bhargavi Devi and another 2012 (1) ALD (Crl.) 562 (AP) relied upon by the complainant clarifies this aspect. In that case, the question before learned Single Judge of this High Court was whether an appeal or a revision lies when an accused was acquitted under Sec.256 Cr.P.C. The learned Judge observed that where an appeal lies and no appeal is brought, no revision shall be entertained at the instance of the party who could have appealed. Therefore, to the extent that in the instant case appeal but not revision is maintainable is clarified through the above decision.

6. Now the crucial question is whether such an appeal is maintainable before the Sessions Court or before the High Court with the leave under Section 378(4) Cr.P.C. It may be noted that in Veena S. Rajnalkar’s case (1 supra), learned Judge of this Court opined that such an appeal is maintainable before the High Court with its leave under Sec.378(4) Cr.P.C. Some judgments of different High Courts were referred to by learned Judge to come to the said conclusion. However, it must be noted that neither in the judgment of this High Court nor in the judgments referred therein, the effect of proviso to Sec.372 Cr.P.C was discussed. In all those cases the trial Courts passed judgments prior to the amendment introduced to Sec.372 Cr.P.C. In the instant case on hand, judgment was passed subsequent to amendment to Sec.372 Cr.P.C. The said Section reads thus:

“Section 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 or 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.”

It should be noted