In cases instituted on a complaint, the proper legal recourse for a complainant to challenge an acquittal is through an application for special leave to appeal under Section 378(4) of the Cr.P.C., not through an appeal under Section 372.

JUDGMENT

1. This revision is filed by the accused challenging the judgment of conviction and order of sentence passed by the LXIV Additional City Civil & Sessions Judge(CCH-64), Bangalore in Criminal Appeal No.1798/2017 dtd.: 14/8/2019.

2. The brief factual matter is leading to the case are that the complainant had lodged a complaint against accusedrevision petitioner herein for the offence under Sec. 138 of Negotiation Instrument Act before the learned Magistrate. The learned Magistrate after taking cognizance issued process against the accused and accused appeared and he was enlarged on bail. The trial was conducted and the learned Magistrate after appreciating the oral and documentary evidence has acquitted the accused for the offence under Sec. 138 of NI act by exercising the powers conferred on whom under Sec. 255(1) of Cr.P.C.

3. This order of acquittal is challenged by the complainant-respondent herein before the LXIV Additional City Civil & Sessions Judge(CCH-64), Bangalore in Criminal Appeal No. 1798/2017. The learned Sessions Judge after appreciating the oral and documentary evidence has set aside the judgment of acquittal passed by the trial Court and allowed Criminal Appeal filed under Sec. 372 of Cr.P.C by convicting the accused for the offence under Sec. 138 of NI Act by imposing sentence of fine of Rs.8, 25, 000.00. Being aggrieved of this judgment of conviction and order of sentence passed by the lower Appellate Court, this Revision is filed.

4. Heard the arguments of learned counsel for the revision petitioner and respondent and perused the records.

5. The learned counsel for the revision petitioneraccused would contend that admittedly the complaint was filed under Sec. 200 of Cr.P.C for the offence under Sec. 138 of Negotiation Instrument Act. Since the penal provisions involved in the instant case are in respect of Sec. 138 of Negotiation Instrument Act and case is being instituted on a complaint, the order of acquittal required to be challenged under Sec. 378 (4) of Cr.P.C. But the complainant has approached Sessions Judge by using provision under Sec. 372 of Cr.P.C which is not permissible. Hence, he would seek for allowing the revision petition by setting aside impugned judgment of lower Appellate Court.

6. Per contra, learned counsel for the respondent would contend that the definition of the victim includes the complainant and hence, under Sec. 372 of Cr.P.C, the victim has got every right to file an appeal before the Court, before whom ordinarily an appeal lies. Hence, he would contend that the learned Sessions Judge was having power. Hence, he would seek for rejection of revision petition.

7. Having heard the arguments and perusing the records it is evident that the complainant has filed a complaint under Sec. 200 of Cr.P.C, on the ground that the accused having availed a loan from complainant has issued two cheques for a sum of Rs.8, 00, 000.00 and when the said cheques were presented, they were bounced. Subsequently, the complainant has issued legal notice and when the amount was not returned, he lodged a complaint under Sec. 200 of Cr.P.C.

8. The learned Magistrate after recording the sworn statement of complainant has issued process and subsequently after trial, acquitted the accused for the offence under Sec. 138 of Negotiation Instrument Act.

9. Sec. 378(4) of Cr.P.C is reads as under:

"Appeal in case of acquittal.- (1) xxxxx (2) xxxxx (3) xxxxx (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) xxxxx

(6) xxxxx" In support of his contention the learned counsel for the petitioner has further placed reliance on a decision of Apex Court in the case of Subhash Chand Vs State (Delhi Admistration) reported in (2013) 2 SCC 17 and argues that when the case is institut