Accused in S.T.No.1482/2009 on the file of the Judicial First Class Magistrate Court, Thiruvalla, is the revision petitioner herein. The case was taken on file on the basis of a private complaint filed by the first respondent herein against the revision petitioner, alleging offence under Section 138 of the Negotiable Instruments Act (hereinafter called 'the Act').
2. The case of the complainant in the complaint was that, revision petitioner borrowed a sum of ₹1,00,000/- from the complainant and in discharge of that liability, he had issued Ext.P1 cheque, which when presented was dishonored for the reasons ‘funds insufficient’, vide Ext.P2 dishonor memo. Complainant issued Ext.P3 notice vide Ext.P4 postal receipt, and the same was received by the revision petitioner evidenced by Ext.P5 postal acknowledgment. He had not paid the amount. So he had committed the offence punishable under Section 138 of the Negotiable Instruments Act. Hence the complaint.
3. When the revision petitioner appeared before the court below, the particulars of offence were read over and explained to him and he pleaded not guilty. In order to prove the case of the complainant, PWs1 and 2 were examined and Exts.P1 to P5 were marked on his side. After closure of the complainant's evidence, the revision petitioner was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the complainant's evidence. He had further stated that, he had no transaction with the complainant and he had not issued the cheque. He had not signed the cheque also. No defence evidence was adduced on his side to prove his case. After considering the evidence on record, trial court found that the complainant had failed to prove the execution and delivery of the cheque as claimed by him and found the revision petitioner not guilty and acquitted him of the charge levelled against him under Section 255(1) of the Code of Criminal Procedure. Aggrieved by the same, the complainant filed Criminal Appeal before the Sessions Court, Pathanamthitta, as Crl.Appeal No.152/2013 and it was made over to the Additional Sessions Court-III, Pathanamthitta, for disposal and the learned Additional Sessions Judge allowed the appeal and set aside the order of acquittal passed by the court below and found the revision petitioner guilty under Section 138 of the Act and convicted him thereunder and sentenced him to undergo imprisonment, till rising of the court and also to pay the cheque amount of ₹1,00,000/- as compensation, in default to undergo simple imprisonment for three months under Section 357(3) of the Code. Aggrieved by the same, the present revision has been filed.
4. Since the respondent entered appearance, this court felt that the revision can be admitted, heard and disposed of today itself. So the revision is admitted and heard both sides.
5. The counsel for the revision petitioner submitted that, appeal against acquittal in 138 matter cannot be filed before the Sessions Court and the Sessions Court should not have entertained the appeal and should have returned the same for presentation before proper court. So the court below was not justified in entertaining the appeal and reversing the order of acquittal passed by the court below. He had also submitted that, courts below should not have reversed the finding as well. On the other hand, the counsel for the first respondent submitted that the court below had admitted the appeal on the basis of the decision available at that time and being a first appellate court on facts, the appellate court has power to re-appreciate the evidence and the finding of the lower court is perverse, it can set aside that finding and no illegality has been committed by the court below in allowing the appeal.
6. It is an admitted fact that, the appeal against acquittal will be normally maintainable before this court under Section 378(4) of the Code. It is true that, a right has been given to the defacto complainant or victim in criminal cases, to file appeal by incorporating proviso to Section 372 of the Code, but that will not take in by the complainant in the private complaint and in such cases, the remedy of the complainant is to file a petition for leave to appeal before this court and if leave is granted him to file the appeal under Section 378(4) of the Code, he can file the appeal. It is true that there were conflicting decisions on this aspect, but that was settled by a Division Bench of this court in the decision reported in Omana Jose v. State of Kerala (2014(2) KLT 504), in which it has been held that, the complainant in a case under Section 138 of the Act, cannot challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the Code of Criminal Procedure and his remedy is only to file an appeal to the High Court with leave to file appeal under Section 378(4) of the Code and it has been further held in that decision that the dictum laid down in (2013 (4) KHC 629) Shibu Joseph and others v. Tomy K.J. and Others, is not good law. So in view of the above decision, the appeal filed against acquittal by the first respondent before the Sessions court is without jurisdiction and consequentially the judgment passed by the court below reversing the order of acquittal passed by the trial court is also unsustainable in law and the same is liable to be set aside. But at the same time, since the complainant had filed the appeal on the mis-conception that, he will come under the definition of victim mentioned in proviso to Section 372 of the Code and also guided by one of the decisions of this court and the Sessions Court has entertained the appeal and disposed of the same, this court feels that, the liberty of the first respondent to file appeal against acquittal before this court under Section 378(4) has to be protected. So he is at liberty to file an appeal before this court under Section 378(4) in accordance with law.
With the above observation, the revision is allowed and the order of the Additional Sessions Court in Crl.Appeal No.152/2013 is set aside and the order of the magistrate in S.T.No.1482/2009 is restored, leaving open the right of the first respondent to file regular appeal before this court under Section 378(4) of the Code of Criminal Procedure.
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K. RAMAKRISHNAN, (Judge) // True Copy // P.A. to Judge ss