DHARMVEER SINGH TOMAR Vs. RAMRAJ SINGH TOMAR

JUDGEMENT

(1.) This revision has been preferred by applicant/complainant against order dated 31.8.2010 passed by Fourth Additional Judge to First Additional Sessions Judge, Gwalior, in Criminal Appeal No. 266/2010, whereby appeal preferred against judgment dated 28.1.2010 passed in Criminal Case No. 2302/2008 acquitting Respondent from the charge under Section 138 of the Negotiable Instruments Act, (for brevity the Act) is dismissed.

(2.) Facts stated in brief are that applicant/complainant filed a complaint under Section 138 of the Act before JMFC, Gwalior, which was registered as Criminal Case No. 2302/2008. In that case, Respondent/accused was acquitted by judgment dated 28.1.2010 from the charge under Section 138 of the Act. Against that judgment of acquittal, applicant/complainant preferred Criminal Appeal No. 266/2010 which was dismissed by learned Appellate Court vide order dated 31.8.2010 on two grounds; firstly that appeal is time barred and secondly appeal is not maintainable. Against this order of Appellate Court dismissing the appeal, applicant/complainant has preferred this revision.

(3.) It is contended by learned Counsel on behalf of the applicant that order of learned Appellate Court is illegal, arbitrary and contrary to law and deserves to be set aside. It is further contended that as per the provisions of Section 372 of Cr.P.C., victim can prefer an appeal against any judgment or order passed by the criminal Court acquitting the accused before Session Court. Hence, applicant has rightly preferred appeal in Sessions Court and learned Court below has erred in holding that appeal is not maintainable under Section 372 of Code of Criminal Procedure It is further submitted that Section 378(4) of Code of Criminal Procedure prescribes that complainant can only prefer an application for leave to appeal and if such leave is granted, then such appeal lies before High Court. Under the provisions of Section 378(4) of Code of Criminal Procedure right to file appeal depends upon the discretion of the Court, while Section 372 of Code of Criminal Procedure gives an absolute right to the victim to prefer an appeal against the judgment of acquittal in Session Court.