( 1 ) THE opponent No. 1 herein was convicted for the offence under sec. 420 of Indian Penal Code and in appeal filed by him against the said judgment and order of conviction the applicant who had filed private complaint in the Court was not given notice. Therefore he feels aggrieved. According to the applicant he has a right to receive notice of hearing as provided under sec. 385 (1) (iii) of Criminal Procedure Code. Therefore the question is has the applicant (original complainant) any right whatever to receive such notice as to hearing of appeal ?

( 2 ) NECESSARY facts in brief be stated first. The applicant filed a complaint in the Court of learned Metropolitan Magistrate Ahmedabad alleging that the opponent No. 1 (original accused) had committed offence of cheating and had misappropriated an amount of Rs. 12 0 It was alleged that the applicant and the accused were working as Directors of a Bank known as Apex Bank. Thus the applicant and the accused were knowing each other. The applicant advanced an amount of Rs. 12 0 to the accused. It was the case of the applicant that as per the promise and as per the post-dated cheques of Rs. 500. 00 each given to the applicant he could not realize the amount. When the cheques were presented before the bank it was brought to his knowledge that the account was closed. It may also be noted that the applicant had obtained promissory note when he advanced the aforesaid amount.

( 3 ) THE learned Magistrate did not issue process on the complaint but directed the Police to investigate in the matter and submit report. This order was passed by the learned Magistrate under the provisions of sec. 156 (3) of Criminal Procedure Code. The Police Inspector Ellis-Bridge Police Station investigated in the matter and submitted the chargesheet. On the basis of the chargesheet the learned Magistrate proceeded further. The charge for offence of cheating under sec. 420 of Indian Penal Code was framed against the accused and he pleaded not guilty to the charge. The learned Magistrate on appreciation of the evidence and after hearing the parties came to the conclusion that the opponent No. 1 (accused) was guilty of offence under sec. 420 of the Indian Penal Code and ordered him to undergo R. I for three months and further ordered to pay a fine of Rs. 1 0 and in default of payment of fine ordered him to undergo R. I. for one month more. This judgment and order was passed by the learned Magistrate on 30-11-1981.

( 4 ) THE opponent No. 1 (accused) preferred an appeal being Criminal Appeal No. 208 of 1981 in the Court of learned City Sessions Judge Ahmedabad. The learned additional City Sessions Judge who heard the appeal came to the conclusion that the offence of cheating under sec. 420 of Indian Penal Code was not made out in as much as there was no parting with the property on the basis of the inducement os false representation made by the opponent No 1 (accused ). In his opinion the dispute between the parties was of Civil nature. Therefore be allowed the appeal and acquitted the accused of the offence charged against him. This judgment and order was passed on 12/05/1982

( 5 ) AGAINST the aforesaid judgment and order of acquittal passed by the learned Additional City Sessions Judge Ahmedabad the applicant has preferred this Revision Application. A technical contention has been raised. It is submitted that the case was instituted by the applicant by filing complaint before the Magistrate. Therefore the applicant had a right of receiving notice and of being heard as provided for under sec. 385 of Criminal Procedure Code. It is contended that the appeal before the learned City Sessions Judge was against a judgment and order of conviction and the appeal was not dismissed summarily. Therefore it was incumbent upon the appellate Court to issue notice to the applicant (original complainant) as to the time and place at which such appeal was to be heard Reliance is placed on the provisions of sec. 385 (1