- (1.) THESE leave to appeals have been preferred by the complainants whose complaints under Section 138 of the Negotiable Instrument Act was dismissed by the learned Magistrate. The application for leave to appeal has been filed before this court under sub-section (4) of Section 378 Cr.P.C.
(2.) IN all three cases, the judgment of the learned Magistrate has been delivered after 31.12.2009 i.e. the date after the amendment to Section 372 Cr.P.C. vide amending Act No.5 of 2009 vide Section 29 thereof by which a proviso to Section 372 Cr.P.C. has been added. The proviso to Section 372 Cr.P.C. reads as follows:- "Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court." The definition of "Victim" has been provided under Section 3(wa) of the Code of Criminal Procedure which reads as follows:- "3(wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir." It cannot be disputed that in case of the complainant, on account of dishonour of cheque under Section 138 of the Negotiable Instrument Act when a complaint is filed by a person, the person who has suffered the losses on account of the cheque not being honoured given by the accused, the person would fall within the definition of "victim". Such victim, defined under Section 3(wa) Cr.P.C., under the newly added proviso to Section 372 Cr.P.C. would have a right to prefer an appeal against the order passed by the court acquitting the accused, as in the present case, in accordance with the proviso to Section 372 Cr.P.C. the victim would have a right to file an appeal and the said appeal shall lie "to the court to which an appeal ordinarily lies against the order of conviction....". In the case of conviction by the Court of Magistrate for the offence under Section 138 of the Negotiable Instrument Act, the appeal would lie to the court of Sessions and, therefore, in the present case -3- keeping in view the proviso to Section 372 Cr.P.C., I am of the view that the appellants/applicants should have preferred an appeal under the proviso to Section 372 Cr.P.C. before the court of Sessions. In that view of the matter, the appellants/ applicants need not have preferred the leave to appeal applications which have been filed before this court directly without filing the appeals before the court of Sessions.
(3.) THESE leave to appeal-applications accordingly stand dismissed as not maintainable. The appellants, if so advised, may prefer appeals before the court of Sessions. The Registry is directed that the certified copy of the judgment and vakalatnamas which have been filed in these leave to appeal applications may be returned to the learned counsel for the appellant/applicants after retaining a photostat copies of the same on the record. It is made clear that the appellants would be entitled to seek condonation of delay on account time spent in pursuing the remedy before this court, in accordance with law. Consequently, all these three leave to appeals stand disposed of.;