The complainant's right to appeal against acquittal lies under Section 378(4) Cr.P.C. only before the High Court with special leave. The Sessions Court does not have the jurisdiction to entertain an appeal in a complaint case.

JUDGMENT :

SHAMPA DUTT (PAUL), J

1. The present revision has been preferred against a judgment dated 20th of February, 2019 passed by the Learned Additional Sessions Judge, First Court, Hooghly Sadar at Chinsurah in Criminal Appeal No. 46 of 2011, convicting the present petitioner for commission of offence punishable under Section 138 of the Negotiable Instrument Act and sentencing him to suffer simple imprisonment for six months and also to pay a fine of Rs.1,22,775/- (no sentence in default of fine has been passed) thereby setting aside an order of acquittal dated 26th of September, 2011, passed by the learned Judicial Magistrate, 3rd Court, Hooghly Sadar, Chinsurah, in C.R. Case No. 579 of 2009.

2. The petitioner’s case is that in the year 2009, the present opposite party No. 2 filed one petition of complaint before the Learned Chief Judicial Magistrate, Hooghly Sadar, Chinsurah alleging thereby commission of offence punishable under Section 138 of the Negotiable Instrument Act, against the present petitioner and the same was registered as C.R. Case No. 579 of 2009. The Learned Chief Judicial Magistrate, Hooghly Sadar, Chinsurah, after perusing the petition of complaint has been pleased to take cognizance and transferred the case to the file of the Learned Judicial Magistrate, 3rd Court, Hooghly Sadar, Chinsurah, for disposal.

3. The Learned Judicial Magistrate, 3rd Court, Hooghly Sadar, Chinsurah, after conclusion of trial, by an order dated 26th of September, 2011, has been pleased to pass an order of acquittal thereby holding the petitioner herein not guilty.

4. Challenging the legality of the order dated 26th of September, 2011, passed by the Learned Judicial Magistrate, 3rd Court, Hooghly Sadar, Chinsurah, passed in connection with C.R. Case No. 579 of 2009, the opposite party No. 2 herein on 12th of December, 2001, filed one appeal before the Learned District and Sessions Judge, Hooghly at Chinsurah under Section 372 of the Code of Criminal Procedure, 1973 and the same was registered as Criminal Appeal No. 46 of 2011.

5. That at the time of hearing of the criminal appeal, neither the respondent no. 2 herein (Being the appellant before the Sessions Court) nor his advocate appeared before the Learned Additional Sessions Judge, First Court, Hooghly Sadar at Chinsurah, but the Learned Judge opined that the criminal appeal requires to be disposed of on merit even in absence of the appellant and only on hearing the argument advanced on behalf of the Public Prosecutor and the present petitioner/accused and after perusing the relevant records available before him, the Learned Judge has been pleased to set aside the order dated 26th of September, 2011, passed by the Learned Judicial Magistrate, 3rd Court, Hooghly Sadar, Chinsurah, in connection with C.R. Case No. 579 of 2009 and has been pleased to convict the present petitioner for commission of offence punishable under Section 138 of the Negotiable Instrument Act and sentenced him to suffer simple imprisonment for six months and also to pay a fine of Rs.1,22,775 (no sentence in default of fine has been passed).

6. The petitioner submits that the legal procedure adapted by the present opposite party No. 2 by filing an appeal under Section 372 of the Code of Criminal Procedure, 1973 before the Learned District & Sessions Judge, Hooghly, against the order of acquittal passed by the Learned Judicial Magistrate, 3rd Court, Hooghly Sadar, Chinsurah, in connection with C.R. Case No. 579 of 2009, is absolutely illegal. It is well settled proposition of law that in case of appeal against acquittal, the aggrieved appellant has to file for special leave before this Hon’ble High Court, to file an appeal against the order of acquittal under Section 378 of the Code of Criminal Procedure, 1973. But in the instant case, the opposite party no. 2 filed an appeal under Section 372 of the Code of Criminal Procedure 1973, before the Learned Sessions Judge. The Learned Judge, overlooked the settled lega