Ganesh Bandu Badgujar vs Mangalabai Ashokbhai Patel
2013 Latest Caselaw 301 Bom

                                        (1)


         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
              AURANGABAD BENCH, AT AURANGABAD.




                                                                                      
                   Criminal Revision Application No. 100 of 2013




                                                              
    Ganesh Bandu Badgujar,
    Age : 50 years,
    Occupation : Agriculture,




                                                             
    R/o. Kadholi, Taluka : Erandol,
    District : Jalgaon.                                          .. Applicant.

               versus




                                           
    1. Mangalabai Ashokbhai Patel,
                         
       Age : 47 years,
       Occupation : Service,
       R/o. Gut No. 54/2, Plot No. 28,
                        
       Besides Shiva Apartment,
       Shiv Colony, Jalgaon,
       Taluka & District : Jalgaon.
      

    2. The State of Maharashtra.                                 .. Respondents.
   



                                   .......................

                Mr. Vijay B. Patil, Advocate, for the applicant.





                Mr. Sachin Risbud, Advocate, instructed by
                Mr. M.M. Bhokarikar, Advocate, for the respondent
                no.1.

                Mr. P.N. Muley, Additional Public Prosecutor, for





                the respondent no.2.

                                   ........................




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                                    CORAM : ABHAY M. THIPSAY, J.

DATE : 9TH DECEMBER 2013

ORAL JUDGMENT :

1. Rule. By consent, Rule made returnable forthwith. By

consent, heard finally.

2. The applicant is the original accused. He was being

prosecuted on the basis of a complaint filed by the respondent no.1 herein,

alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. On 8-11-2010, the learned Judicial

Magistrate (First Class), Jalgaon, passed an order acquitting the applicant, as contemplated under Section 256 of the Code of Criminal Procedure, 1973 [For short, "the Code"]. Against the said order of acquittal, the

respondent no.1 herein i.e. the original complainant filed an appeal in the

Court of Sessions. This appeal was dealt with and allowed by an Additional Sessions Judge.

Being aggrieved by the said order passed by the appellate court, the original accused has approached this Court by filing the present Revision Application.

3. Clearly, the appeal filed before the Court of Sessions was not at all maintainable. It appears that the appeal was filed purportedly under the proviso to Section 372 of the Code. Thus, the appeal had been filed by claiming that the original complainant was a victim, as contemplated

under the proviso to Section 372 of the Code. The proviso to Section 372 was inserted by Section 29 of the Code of Criminal Procedure

[Amendment Act, 2008 (5 of 2009)], with effect from 31-12-2009. The proviso was inserted with the object of giving an opportunity to the

persons who are affected by the decision of the court, but who had not been given right to file any appeal under the provisions of the Code, to

challenge such decision by filing an appeal.

4. The case in question had arisen on a complaint filed by the

respondent no.1. As such, he was the complainant. A complainant has

already been given a right under the Code, to file an appeal in case of acquittal [Section 378(4) of the Code]. Such appeal lies to this Court. The

complainant in a private complaint, who already has a right to file an appeal under the provisions of Section 378(4) of the Code, cannot, by claiming to be a 'victim', file an appeal by virtue of the proviso to Section

372 of the Code. Since the complainant already had a right to file an

appeal, as contemplated under Section 378(4) of the Code, such a complainant could not have filed an appeal claiming to be a 'victim'. Consequently, the appeal filed by him before the Court of Sessions was

not at all maintainable. The proceedings before the Court of Sessions were a nullity. The trial and the order of allowing the appeal is to be treated as 'non-est'.

5. Consequently, the Revision Application succeeds.

The order dated 16-4-2013, passed by the Additional Sessions Judge, Jalgaon, in Criminal Appeal No. 119 of 2010, is quashed and set

aside.

It is clarified that, this shall not prevent the original complainant from filing an appeal in accordance with the provisions of Section 378(4)

of the Code, challenging the order of acquittal passed by the Magistrate.

6. Rule is made absolute in the aforesaid terms.

                                             
                                                     ( ABHAY M. THIPSAY )
                             ig                             JUDGE

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         bgp/crirevn100