Ajit Borthakur, J.

1. This is an appeal under Section 378 Cr.P.C. preferred against the judgment and order of acquittal of the respondent No. 2 herein, dated 30.11.2015, passed by the learned Sub-Divisional Judicial Magistrate (S), Kamrup (M) at Guwahati, in C.R. Case No. 1029/2013 under Section 138 of the Negotiable Instruments Act (for short 'N.I. Act'), 1981.

2. The complainant-appellant's case, precisely, is that the respondent No. 2 issued a cheque, bearing No. 285016, dated 21.11.2012 amounting to Rs. 1 lac in his favour for liquidating a legally enforceable debt. However, the cheque was dishonoured by the bank on presentation, on 23.01.2013 due to insufficient fund. The appellant issued demand notice to the respondent No. 2, on 18.02.2013, which was delivered to him, on 25.02.2013. But the respondent No. 2 did not make payment of the cheque amount. Therefore, the complainant - appellant herein lodged a complaint under Section 138 of N.I. Act before the Court of learned Chief Judicial Magistrate, Kamrup (M) at Guwahati against the accused-respondent No. 2 herein. On being made over, the trial commenced in the Court of learned Sub-Divisional Judicial Magistrate (S), Kamrup (M) at Guwahati and after completion of trial, the learned trial Court by the impugned judgment and order acquitted the accused-respondent No. 2 of the charge under Section 138 of the N.I. Act.

3. Now, by the instant appeal, the complainant-appellant has assailed the above impugned judgment and order, on the grounds, inter-alia, that the learned Trial Court failed to appreciate the evidence adduced by both the sides along with the statement of the accused-respondent No. 2 recorded under Section 313 Cr.P.C. from proper perspective.

4. Mr. A.K. Bhuyan, learned counsel for the complainant-appellant submitted that the learned Trial Court wrongly held that the complainant failed to prove the pre-requisite of the existence of a legally enforceable debt misinterpreting the cogent evidence on this count and in view of various admissions of the accused respondent No. 2 in cross-examination of the witnesses as well as in his statement under Section 313 Cr.P.C. Mr. Bhuyan, learned counsel for the complainant-appellant further submitted that the instant appeal being filed after obtaining special leave to appeal as required under Section 378 (4) Cr.P.C., the appeal against acquittal in a complaint case is maintainable to the High Court. Learned counsel also submitted to remand the case to the learned Trial Court to deliver a fresh judgment upon hearing of both the sides.

5. Mr. S.K. Bhuyan, learned counsel for the complainant-appellant herein submitted that in the case of Satya Pal Singh v. State of M.P. & Ors., rendered in Criminal Appeal No. 1315 of 2015 [arising out of SLP (Crl.) No. 7954 of 2014] (supra), cited by the defence, the Apex Court dealt with the question of appeal against acquittal by the victim in a case instituted on police report, whereas the instant case relates to appeal by the victim against acquittal recorded by Magistrate in a complaint case under Section 138 of the N.I. Act. Therefore, Mr. Bhuyan submitted that the proviso to Section 372 Cr.P.C. should be read in conjunction with Section 378 (3) and 378 (4) Cr.P.C. as the victim here is the complainant in the 138 N.I. Act proceeding by reason of acquittal of the accused-respondent No. 2 by the learned Trial Magistrate for which appeal has been preferred to the High Court with prior leave already granted for the purpose. According to Mr. Bhuyan, learned counsel for the appellant, the present appeal is maintainable in view of the clear provision in Section 378 (4) Cr.P.C.

6. Mr. D.C.C. Phukan, learned counsel for the accused-respondent No. 2 submitted that the substantive proviso to Section 372 Cr.P.C. provides right to appeal to the complainant - victim against an order of acquittal by the Magistrate to the court, to which an appeal ordinarily lies against the order of conviction