BENNY DANIEL Vs. GOLD GALAXY

JUDGEMENT

(1.) The petitioner herein is the complainant in S. T. No. 162/2003 on the file of the Judicial First Class Magistrate's Court-II, Pathanamthitta, in which respondents 1 and 2 herein, are arrayed as accused 1 and 2, alleging offence punishable under S. 138 of the Negotiable Instruments Act. The cheque amount covered by the dishonoured Ext.P-1 cheque dated 28.2.2003 is for Rs. 2.5 lakhs, which is said to have been drawn by the 1st accused partnership firm, etc. The trial court as per the judgment rendered on 30.10.2004 has convicted both the accused for the abovesaid offence and has sentenced A-2 (managing partner of the partnership firm) to undergo simple imprisonment for one year and further that A-1 and A-2 shall pay Rs. 2.5 lakhs as compensation to the complainant in terms of S. 357(3) of the Cr. P. C. and in default thereof, A-2 shall undergo simple imprisonment for six months. Aggrieved thereby, respondents 1 and 2 herein had filed Cri. Appeal No. 367/2004 before the Court of Addl. Sessions Judge, Pathanamthitta. The appellate sessions court as per the impugned judgment rendered on 9.2.2007 has allowed the appeal by ordering the acquittal of both accused 1 and 2.

(2.) The complainant has filed the present Criminal Revision Petition by taking recourse to the remedies under Ss. 397 and 401 of the Cr. P. C. so as to impugn the abovesaid judgment dated 9.2.2007 of the appellate court, which led to the acquittal of accused 1 and 2. The learned counsel appearing for respondents 1 and 2 (A-1 and A-3) raised a contention that the remedy of a complainant, who is aggrieved by the judgment of acquittal in private complaint like the present one is to seek special leave of this Court under S. 378(4) of the Cr. P. C. for prosecuting a criminal appeal before this Court so as to impugn the said judgment of acquittal. It is contended that since such an explicit remedy has been conferred on the complainant like the present petitioner, in terms of S. 378(4) of the Cr. P. C., the bar under S. 401 (4) for entertaining a revision would lie and revision is not maintainable.

(3.) Sri. T. M. Abdul Latiff, learned counsel appearing for revision petitioner has resisted the said plea of the accused and has also raised an alternate plea, that in case this Court holds that revision is not maintainable in view of the aforesaid aspects, this Court has the power to convert the revision petition, as an appeal in terms of the provisions contained in sub section (5) of S. 401. This submission was opposed by Sri. Abraham George Jacob, the learned counsel appearing for respondents 1 and 2 by stating that in the very scheme of things in S. 378(4), a special leave has to be obtained from this Court before the institution of a criminal appeal and what is conceived of in sub -section (5) of S. 401 of the Cr. P. C. is conversion of a revision petition to an appeal, provided the appeal is directly maintainable and in case where appeal can be instituted only after securing special leave of this Court, then the enabling provisions under sub-section (5) of S. 401 cannot be pressed into service. Presumably, in order to overcome this objection, the revision petitioner has filed the two aforecaptioned criminal miscellaneous applications and the prayer in one such application is to grant special leave to the petitioner to institute criminal appeal and prayer in the latter criminal miscellaneous application is to convert present revision petition to an appeal in terms of S. 401(5) of the Cr. P. C.