A complainant can file an application for special leave to appeal against an order of acquittal only to the High Court and not in the Sessions Court.

Suresh Kait, J.

1. By way of this petition filed under Section 482 of the Code of Criminal Procedure, 1973, petitioner assailed the order dated 20.09.2014 passed by learned Additional Sessions Judge - 04, South-East District, Saket Courts, New Delhi in Criminal Revision Petition No. 15/2014 titled as Dharam Godha v. Surat Singh.

2. Consequent to service of notice upon respondent No. 2 and appearance of his learned counsel on 19.03.2015, none appeared on his behalf on last date of hearing i.e. 15.07.2015. So is the position today. Therefore, this Court is compelled to dispose of the petition in his absence.

3. The complainant/respondent No. 2 instituted a criminal complaint case bearing No. 1757/1 under Section 138 of the Negotiable Instruments Act, 1881 against the petitioner and vide order dated 15.04.2014 same was dismissed in default and for non-prosecution. Consequently, the petitioner was acquitted.

4. Being aggrieved from the said order passed by learned Trial Court on 15.04.2014, respondent No. 2/complainant preferred the above-noted Criminal Revision Petition which was converted into appeal and allowed vide order dated 20.09.2014.

5. Being aggrieved, petitioner has assailed the afore noted order of learned Revisional Court in this petition. Mr. Sanjeev Salhan, learned counsel for petitioner submitted that he argued before learned Revisional Court that said Court lacks jurisdiction to entertain the revision petition as the proper remedy available to the revisionist/ complainant was to move a leave to petition under Section 378 (4) of the Cr PC along with an appeal. Therefore, the revision was barred under Section 401 (4) of the Cr PC.

6. Learned counsel further argued that the victim and complainant are two different categories and that victim referred in the Code is not the similar to the word ‘complainant’. He submitted that very limited right to file appeal was granted to the victim under proviso to Section 372 Cr PC and only in those case where the State does not prefer any appeal against the order of acquittal. He further argued that Section 378 of the Code prescribes a complete procedure to file appeal in cases of acquittal liberally interpreted of the term ‘victim’ while making the scheme of Section 378 Cr PC nugatory.

7. To strengthen his contentions, learned counsel for petitioner has relied upon the decision of Subhash Chand v. State (Delhi Administration) 2013 (1) JCC 338 wherein short point which arose for consideration before the Apex Court was whether in a complaint case, an appeal from an order of acquittal of the Magistrate would lie to the Sessions Court under Section 378 (1) (a) of the Code or to the High Court under Section 378(4) of the Code. In para 17 of the said decision, the Apex Court had observed that sub Section 4 to Section 378 of the Code make the provision for appeal against an order of acquittal passed in the cases instituted upon the complaint.

8. In view the arguments of learned counsel for petitioner and legal position, learned Revisional Court directed to convert the said revision petition into appeal and accordingly same was allowed, however, without allowing leave to appeal.

9. Learned counsel for petitioner submitted that learned Revisional Court has no jurisdiction to entertain the appeal against the acquittal order. The complainant had to file a Leave to Appeal before this Court and not before the Sessions Court. Moreover, the complainant did not file any application for leave before learned Revisional Court.

10. Learned counsel for petitioner further submitted that identical issue came up for consideration before this Court in Criminal Appeal No. 972/2012 titled The Bhajanpura Cooperative Urban Thrift & Credit Society v. Sushil Kumar and Criminal Appeal No. 1163 of 2012 titled The Bhajanpura Cooperative Urban Thrift & Credit Society v. Prabhu Dayal which were decided vide common judgment dated 03.09.2014 whereby this Court held as under:-

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