JUDGMENT

Subhendu Samanta, J.

The opposite party herein, initiated a petition of complaint U/s 138 of Negotiable Instrument Act against the present petitioner before the Learned Chief Judicial Magistrate Barrackpore vide Case No. 1966 of 2010. Subsequently, the case was transferred to the Court of Learned Judicial Magistrate 5th Court of Barrackpore. After conclusion of the trial Learned CJM found the present petitioner to be not guilty for the offence punishable U/s 138 of NI Act and thereby acquitted the present petitioner under section 255(1) of the Code of Criminal Procedure.

2. Against such order of acquittal an appeal has been preferred before the Learned Sessions Judge, North 24 Parganas vide a Criminal Appeal No. 101 of 2015 thereafter it was heard by Learned Additional Sessions Judge, Fast Track 3rd Court Barrackpore, North 24 Parganas, wherein Learned Additional Sessions Judge, set aside the order of acquittal passed by the Leaned Judicial Magistrate and found the present petitioner to be guilty of the offence punishable U/s 138 of Negotiable Instrument Act and convict the present petitioner U/s 255(2) of Cr.P.C.

3. Hence, this appeal.

4. Only two points of law are involved in the appeal.

5. Point No. 1:– whether a complainant in a case U/s 138 of N.I Act is a victim as defined U/s -2(wa) of Cr.P.C. ?

6. Point No. 2:- If the complainant is a victim within the definition of Section– 2(wa) of Cr.P.C., is he entitled to file an appeal invoking the provision to Section – 372 of Cr.P.C. before the court to which an appeal lies against the conviction?

7. Learned Advocate appearing on behalf of the petitioner cited a decision reported in (2013)(2) Supreme Court Cases 2017. He pointed out that the principle of law has settled in the Judgment of SUBHAS CHAND (supra). It has clearly held that in a case instituted on a complaint and an order of acquittal is passed, whether offence be bailable or nonbailable, or cognizable or noncognizable, complainant can only file application U/s 378(4) Cr.P.C. for special leave to appeal against it in High Court but the, complainant cannot file such appeal in Sessions Court.

8. It is the fact that a complaint case arising out on the basis of a petition of complaint U/s 138 of N.I. Act is a private complaint. Let me consider whether the complainant of a complaint case filed U/s 138 of N.I Act can be treated as ‘victim’ as defined U/s 372 of the Code of Criminal Procedure. Section 372 of the Code of Criminal Procedure after its amendment allowed a victim to prefer an appeal against an order of acquittal before a court of appeal where ordinarily appeal lies against the order of conviction of such court.

9. Section 372 of the Cr.P.C. read as follows.

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]

10. The term victim has been defined U/s 2(wa) of the Code of Criminal Procedure as follows :

(wa) “victim’’ means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir;]

11. If a complainant of 138 of N.I Act comes under the purview of the definition of victim enumerated U/s 2(wa) of the Cr.P.C he must have a right to appeal before the Court of Sessions against the order of acquittal.

12. The question has arisen before the different authorities and the principle is now well settled by a decision of AndhraPradesh High Court in Smt P. Vijaya Laxmi Vs. Smt. S.P. Sravana And Another.

13. It has been categorica