IMPORTANT POINT
Victim in a complaint case against acquittal order can prefer appeal only before High Court without any application to grant leave.

Om Prakash-VII, J.—The present application under Section 482 Cr.P.C. has been filed with the prayer to quash the judgment and order dated 16.11.2015 passed by the Additional District and Sessions Judge, Fast Track Court, Jhansi in Criminal Appeal No.145 of 2013 (Anil Kumar Agarwal vs. Braj Bhushan Lahariya and another) under Section 378 Cr.P.C., P.S. Nawabad, District Jhansi.

2. Heard Shri Hare Krishna Tripathi, learned counsel for the applicant as well as the learned AGA appearing for the State and perused the record.

3. It was submitted by the learned counsel for the applicant that the appeal against acquittal in a complaint case under Section 138 Negotiable Instruments Act (in short ‘the Act’) was maintainable before the concerned Sessions Judge. The impugned order passed by the Court below is illegal. In support of his submissions, learned counsel for the applicant placed reliance on the following decisions:

1. Ashok Kumar Srivastava and others v. State of U.P. and another in application

u/s 482 no. 5934 of 2012, decided on 30.3.2012.

2. Ved Prakash Yadav and 2 others v. State of U.P. and others, criminal revision no. 3539 of 2015, decided on 24.9.2015.

4. Per contra, learned AGA appearing for the State submitted that there is no infirmity or illegality in the impugned order. Acquittal order in a complaint case can be challenged by the complainant only before the High Court under Section 378(4) CrPC with the leave of the Court. It was further submitted that the proviso inserted under Section 372(2) CrPC does not make any change in law. Although victim’s right for filing appeal under Section 372 CrPC is substantive and unfettered right of appeal yet the right created by this proviso would be available before the High Court. The appeal before the Sessions Judge would not be maintainable. In support of his submissions, learned AGA has placed reliance on the decision of Apex Court in Subhash Chand v. State (Delhi Administration), (2013) 2 SCC 17.

5. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the case laws.

6. It appears that the opposite party no.2 had taken Rs. 1,62,000/-, time to time, from the applicant and issued two cheques in turn of the said amount to the applicant, which were dishonoured due to insufficiency of fund in the account of the opposite party no.2. After fulfilling the legal formalities, the applicant filed a complaint under Section 138 of the Act and 420 IPC against the opposite party no.2. The Magistrate concerned vide its order after trial acquitted the opposite party no.2 from the charges. Aggrieved with the said judgment and order, the applicant filed aforesaid criminal appeal which was dismissed on the point of maintainability observing that the appeal against acquittal in a complaint case for the offence under Section 138 Negotiable Instruments Act would be maintainable only before the High Court under Section 378(4) CrPC with the leave of the Court. Hence, this application under Section 482 CrPC.

7. From the facts and circumstances of the case as well as the submissions made by the learned counsel for the parties,short question for consideration in the matter arises as to whether the victim in a criminal complaint case against the acquittal order can prefer appeal before the Sessions Judge or such appeal would lie before the High Court either taking recourse of the provisio to Section 372 CrPC or with the leave of Court under the provisions of Section 378(4) CrPC.

8. In the instant matter, as mentioned above, it is evident that the impugned order has been passed by the concerned Sessions Judge in an appeal preferred by the complainant against the acquittal order under Section 138 of the Act. Applicant was the complainant in the trial.

9. Learned Single Judge of this Court in Ashok Kumar Srivastava case (supra) has held as under (paragraphs 31, 32 and 33 of the said decision):

“31. The purpose of the