IN THE HIGH COURT OF ORISSA AT CUTTACK CRLLP No.150 of 2013 Pradip K. Nayak ..... Petitioner(s)

Mr. Lalatendu Samantaray, Senior Advocate along with associates -versus-

Authorised Signatory, ..... Opposite Party(s)

Gowthami Infra Tech Mr. Millan Kanungo, Advocate Pvt. Ltd. & Anr.

CORAM:

THE HON’BLE DR. JUSTICE SANJEEB K. PANIGRAHI

ORDER

19.02.2025 Order No.

06. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode).

2. Heard learned counsel for the Petitioner. Perused the application as well as the prayer made therein.

3. The present application has been filed under Section 378(4) of the Cr.P.C. with a prayer for grant of leave to prefer an appeal against the judgment of acquittal dated 23.08.2013 passed in 1.C.C. Case No.440 of 2011 which corresponds to T.R. No.118 of 2012 by the learned Sub-Divisional Judicial Magistrate, Berhampur. The abovenoted trial arises out of a Signature Not Verifie dcomplaint which was filed at the instance of the petitioner-

complainant alleging commission of an offence punishable under Sections 138 of N.I. Act.

4. Learned counsel for the Petitioner at the outset contended that after pronouncement of the judgment dated 23.08.2013 wherein the accused persons were acquitted, the petitioner has approached this Court by filing the present petition. During the pendency of the present petition seeking leave, the Cr.P.C. was amended and proviso to Section 372 was incorporated granting right to the victim to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence and such appeals will lie to the Court to which an appeal would ordinarily lie against the order of conviction of such Court. Such amendment was incorporated by virtue of the amending Act of 2009 and came into force w.e.f. 31.12.2009. Therefore, during pendency of the present leave application Section 372 has been amended giving right to the victim- complainant to prefer an appeal against the judgment of acquittal.

5. The word victim has been defined in Cr.P.C. under Section 2(wa), to mean a person who has suffered any loss or injury cause by the reasons of the act or omission for which the accused persons has been charged and the expression victim Signature Not Verified includes his or her guardian or legal heir. Since the complainant in the present case falls within the definition of victim under Section 2(wa) of the Cr.P.C., she will be covered under the proviso to Section 372 of Cr.P.C.

6. In such view of the matter, this Court is of the view that an appeal under the proviso to Section 372 is very well maintainable in view of the aforesaid changed legal scenario. Thus, this Court is of the view that the Petitioner does not need to seek leave to prefer an appeal against the judgment of acquittal. On the other hand, it is open to the Petitioner to prefer an appeal directly under the proviso Section 372 of the Cr.P.C. 7. In view of the aforesaid legal position, this Court deems it proper to remit the matter back to the Appellate Court to entertain the present application as an appeal under the proviso to Section 372. Further, before proceeding for final adjudication of the appeal by treating the present petition as an appeal memo, the learned trial court shall serve notice on the accused and thereafter, proceed with the final adjudication of the appeal.

8. It is further made clear that the procedure as is applicable to an appeal preferred against the judgment as conclusion shall also be applicable to the present appeal.

9. With the aforesaid observations and directions, the CRLLP stands disposed of.

(Dr. Sanjeeb K Panigrahi)

Judge Gitanjali