2013 ALL MR (Cri) 2713
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)
K.U. CHANDIWAL, J.
Sow. Kalpana W/O. Vinod Muley Vs. The State Of Maharashtra & Anr.
Criminal Revision Application No. 158 of 2012
9th January, 2013
Petitioner Counsel: Mr. VIRDHE BHUSHAN
Respondent Counsel: Mr. LODHE T.S., Mr. DHONGADE A.B.
Negotiable Instruments Act (1881) S.138 - Criminal P.C. (1973), Ss.372, 378(4) - Appeal against acquittal in offence u/s.138 - Would not come within purview of amended provisions of S.372 Criminal P.C. - Remedy to aggrieved person available in terms of S.378(4) of Criminal Procedure Code.
2011 ALL MR (Cri) 2312, 2011 ALL MR (Cri) 3473 Rel. on. (Para 3)
Cases Cited:
Top Notch Infortronix (I) Pvt. Ltd. Vs. M/s.Infosoft Systems and ors, 2011 ALL MR (Cri) 2312=2011(6) Mh.L.J.165 [Para 3]
Shantaram Laxman Tande and ors. Vs. Dipak Madhav Gaikwad and ors, 2011 ALL MR (Cri) 3473=2012(2) Bom.C.R. (Cri.) 768 [Para 3]
JUDGMENT
2. A report is received from learned Addl. Sessions Judge, Basmathnagar dated 20th November, 2012 disclosing events that have taken place in the matter of condoning the delay. Learned Judge had referred to the order passed in Criminal Application No.1337 of 2009 dated 19th October, 2010 by this Court which reads as under :-
"Heard. Allowed to withdraw the application with liberty to file an appeal before the Court of Sessions, in because the acquittal is for offence under Section 138 of the Negotiable Instruments Act. The time spent in this Court, if any, may be considered for the purpose of condonation of delay under Section 14 of the Limitation Act, 1963.
The application is disposed of as withdrawn"
The learned Addl. Sessions Judge, considering the condonation of delay, entertained the Appeal and recorded order of conviction.
3. The legal position, in respect of preferring Appeal against acquittal and seeking leave to file Appeal in terms of Section 378(4) of the Code of Criminal Procedure to High Court is well settled and could not have been entertained by learned Addl. Sessions Judge. This view is taken in the matter of Top Notch Infortronix (I) Pvt. Ltd. Vs. M/s.Infosoft Systems and ors, 2011(6)Mh.L.J.165 : [2011 ALL MR (Cri) 2312] and in the matter of Shantaram Laxman Tande and ors. Vs. Dipak Madhav Gaikwad and ors, 2012(2)Bom.C.R. (Cri.) 768 : [2011 ALL MR (Cri) 3473]. Consequently, the application seeking leave to file Appeal challenging judgment of acquittal under Section 138 of Negotiable Instruments Act would not come within the purview and ambit of amended provisions of Section 372 of Cr.P.C. The remedy to the aggrieved person was before this Court in terms of Section 378(4) of Cr.P.C. to seek leave. The order of conviction recorded against the petitioner is set aside. The respondent - original complainant is at liberty to exhaust his legal remedies.
4. Criminal Revision Application is disposed. Rule discharged.