Point of Law: Section 397 of Cr.P.C., is attracted against all orders except interlocutory orders, even mere availability of alternative remedy cannot be a ground to dis-entitlement of relief under section 482 of Cr.P.C.

ORDER :

1. This petition is filed by the petitioner-accused No.2 under Section 482 OF Cr.P.C for setting aside the judgment of conviction and sentence passed by the 27th Additional Chief Metropolitan Magistrate, Bengaluru in C.C.No.22746/2017 dated 2.1.2023 for having convicted petitioner for the offence punishable under Section 138 of Negotiable Instruments Act, 1881 (hereinafter referred as 'NI Act')

2. The office raised the objection regarding maintainability of this petition filed under section 482 of Cr.P.C., as the petitioner being the accused convicted in the trial court, requires to file appeal under section 374 of Cr.P.C.

3. Heard, Sri. Sandesh J. Chouta, learned senior Counsel for petitioner.

4. The learned senior counsel has contended that the criminal petition filed under section 482 of Cr.P.C is maintainable, even though the statutory right of the accused for filing appeal is available, therefore filing this petition is maintainable. Hence, prayed for over ruling the office objections.

5. The learned counsel relied upon the judgments of Hon'ble Supreme Court in the case of Punjab State Warehousing Corporation Faridkot Vs Shree Durga Ji Traders and Ors reported in (2011) 14 SCC 615 and in case of Vijay and another Vs State of Maharashtra and Anr reported in (2017) 13 SCC 317.

6. Having heard the arguments and perused the records, it is an admitted fact that the accused was a convicted accused by the trial court for the offence punishable under Section 138 of NI Act. The contention of the learned senior counsel is that while convicting the accused No.2, who is only Managing Director of the company but the trial court acquitted the accused No.1 who is the Company. Therefore, there is an error committed by the trial court in acquitting the Company from the charges and convicting only the Managing Director, which is against the principles laid down by the Hon'ble Supreme Court in various cases. Therefore, this petition is maintainable under section 482 of Cr.P.C.

7. The learned senior counsel relied upon the judgment of Hon'ble Supreme Court in Punjab State Warehousing Corporation Faridkot Vs Shree Durga Ji Traders and Ors reported in (2011) 14 SCC 615 where Hon'ble Supreme Court has held that even the alternative remedy of filing appeal is available, but there is no absolute bar to entertain the petition under section 482 of Cr.P.C. I have verified the judgment of Hon'ble Supreme Court in the said cases, where the private complaint filed by the complainant came to be dismissed for default which falls under section 256 of Cr.P.C. On perusal of the provisions of the section 256 of Cr.P.C which defines that closing the proceedings amounts to an acquittal. Therefore, an appeal can also be filed under section 378(4) of Cr.P.C which is a statutory right and the parties can also invoke the provisions of section 482 of Cr.P.C. This court in various cases entertained section 482 of Cr.P.C., where the complaint was dismissed for non prosecution or default of not taking steps, even though an alternative statutory remedy is available, the High Court can also exercise the power under section 482 of Cr.P.C as both remedies are before the High Court and not before the Sessions Court.

8. Another case reported in case of Vijay and another Vs State of Maharashtra reported in (2017) 13 SCC 317, the Hon'ble Supreme Court has held that section 397 of Cr.P.C., is attracted against all the orders except the interlocutory orders, even mere availability of alternative remedy cannot be a ground to dis-entitlement of relief under section 482 of Cr.P.C. The law laid down by the Hon'ble Supreme Court in respect of quashing the FIR for the IPC offences or any other offences, this Court can entertain the petitions filed under Section 482 of Cr.P.C for quashing the petitions and FIR. Therefore, this ruling is not applicable to the case on hand, as this petition is filed for setting aside the judgment of conviction and sentence passed by the trial cou