S.C. Dharmadhikari, J.

1. In this Writ Petition, a Division Bench of this Court extensively heard the parties and delivered a judgment on 05.11.2012 holding that the prayer clause (b) of the Writ Petition cannot be granted. The prayer clause (b) reads as under:

“(b) that this Hon'ble Court be pleased to declare that subsections (b) and (c) of Section 376 of the Code of Criminal Procedure, 1973 are unconstitutional and/or ultra vires Part III of the Constitution of India.”

2. The Division Bench clarified that as far as other prayers are concerned, the Petition may be placed for hearing. Hence, Rule. Respondents waive service. By consent, Rule made returnable forthwith.

3. We have heard Mr. Kumbhakoni, learned counsel appearing for the Petitioners and Mr.Farhan Khan, learned counsel appearing for the Respondent No.2/ original Complainant. 4 The Petitioners were arraigned as accused in a complaint filed by the Respondent No.2 alleging offences punishable under Section 138 r/w 141 of the Negotiable Instruments Act, 1881. The complaint was based on dishonour of two cheques of the aggregate amount of Rs.14,35,000/-. The learned Metropolitan Magistrate convicted the Petitioners by order dated 26.07.2011. The order of conviction and sentence reads as under:

“(i) Accused are hereby convicted for the offence punishable under Section 138 r/w Section 141 of the Negotiable Instruments Act.

(ii) Accused No.2 Kumar J. Sujan, aged about 66 years and accused No.3 Anil Mehrotra, aged about 65 years, both R/o Andheri, Mumbai shall sentence to suffer S.I. till rising of the Court by each and accused shall jointly and severally to pay compensation of Rs.15,00,000/-(Rupees Fifteen Lakhs only) to the Complainant under Section 357(3) of Cr. P.C. within three (3) months from today, in default sentence to suffer S.I. for six (6) months.

(iii) Accused shall surrender their bail bonds.

(iv) Copy of judgment be supplied free of cost to the accused, after transcription of judgment be ready.

(v) Judgment dictated and pronounced in open court.” 5 Against this judgment and order dated 26.07.2011, Criminal Appeal No.136/2011 was filed by the Petitioners in the Court of Sessions for Greater Mumbai at Sewree. Before the Appeal could be set down for hearing on merits, the Respondent No.2 (original Complainant) preferred an application for dismissal of the Appeal on the ground that an appeal against the above sentence was not maintainable by virtue of the bar created by Section 376 of the Code of Criminal Procedure, 1973.

6. The argument was that Section 376(b) lays down that no appeal shall lie before the Court of Sessions where the Metropolitan Magistrate passes only a sentence of imprisonment for a term not exceeding three months or fine not exceeding Rs.200/- or of both such imprisonment and fine. Therefore, when the sentence awarded in the present case included no fine, so also, imprisonment was not for a period exceeding three months, the Appeal preferred by the Petitioners was incompetent and not maintainable by virtue of the bar created by Section 376(b) of the Code of Criminal Procedure, 1973.

7. Upon this position being brought to the Sessions Court's notice, the Appeal was dismissed holding that it was barred by Section 376 of the Code of Criminal Procedure, 1973. Challenging this order dated 24.08.2011 the instant Writ Petition was filed and the issue of constitutional validity of Section 376(b) and (c) was raised. That challenge was negatived by a detailed judgment of the Division Bench dated 05.11.2012. However, we have heard the matter for the other relief pressed and as noted above.

8. Mr. Kumbhakoni, learned counsel appearing for the Petitioners, submits that the impugned order can be challenged by him on other grounds. In other words, assuming that the provision is constitutionally valid, he submits that the Court of Sessions at Greater Mumbai could not have passed the order of dismissal of Appeal. The impugned order is vitiated by total non a