SHANTARAM Vs. DIPAK

JUDGEMENT

(1.) HEARD learned counsel for the respective parties.

(2.) THE applicants in the aforesaid applications are the original complainants who had filed complaints against the respondents (original accused) under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "NI Act" for brevity's sake) before the respective learned Judicial Magistrates. However, the said complaints were dismissed by the learned respective Magistrates for the reasons stated in the judgments and orders delivered in the respective cases, and thereby acquitted the respective accused for the offence punishable under Section 138 of the NI Act. Hence, being aggrieved and dissatisfied by the said respective judgments and orders of acquittals, original complainants have preferred present applications before this Court, seeking leave to file appeal under Section 378 (4) of the Code of Criminal Procedure, 1973. (hereinafter referred to as the `Code' for the sake of brevity.)

(3.) IN the said context, Mr. M.M.Patil Beedkar, learned counsel, representing the learned counsel for respective respondents, submitted that remedy under Section 378 (4) of the Code to file appeal against the order of acquittal, is a discretionary remedy and the applicant is required to make an application praying for special leave of the High Court and after grant of such special leave therein, the appeal against the acquittal can be presented before the High Court, by the complainant. However, learned counsel submitted that so is not the position under the amended proviso to Section 372 of the Code, whereunder a right to prefer appeal against any order passed by the court acquitting the accused or convicting him for lesser offence of imposing inadequate compensation, has been given to the victim, and it is canvassed that the applicants herein (original complainants) are covered by the definition "victim", which also has been introduced by the aforesaid amendment, under section 2(wa) of the Code, which is a inclusive definition, and also includes the complainant, who is also "victim" since he has suffered financial loss. It is also submitted by the learned counsel for the respondents that as per the said amended proviso to Section 372 of the Code, such appeals shall lie to the court to which appeal ordinarily lies against the order of conviction of such court, and therefore, it is consequently, submitted that since the appeal against the order of conviction rendered by the learned Magistrate ordinarily lies before the Court of Sessions, the appeals against the orders of acquittal for the offence punishable under Section 138 of the NI Act shall also lie before the Court of Sessions, and not before this Court.