TMI Blog2013 (4) TMI 889X X X X Extracts X X X X X X X X Extracts X X X X ..... ed from the charges under section 138 of Negotiable Instrument Act against this judgment the present appeal has been preferred. 2. We have heard counsel for the appellant at length. It is submitted by the counsel for the appellant that in fact the present appellant is seeking leave to prefer appeal under Sub-section 4 of Section 378 of Code of Criminal Procedure and if the same is granted acquittal appeal will be argued at length. Counsel for the appellant has also submitted that the present appellant is a complainant, who has preferred a complaint case before the Judicial Magistrate First Class, Dhanbad for the offence under Section 138 of the Negotiable Instruments Act and therefore, upon acquittal present appeal has been preferred alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Code of Criminal Procedure 1973, reads as under : 372. No appeal to lie unless otherwise provided .-No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force: 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 apeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. (Emphasis Supplied) Under this proviso, the victim has statutory right to prefer an appeal. As stated hereinabove the present appellant is complainant as wel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Section 378 of Code of Criminal Procedure. Efficacious alternative remedy by way of statutory appeal is thus available to the complainant, whenever, complainant is victim. (v) Counsel appearing for the appellant submitted that the provision of Sub-section 4 of Section 378 cannot be made redundant in the facts of the present case. This contention is also not accepted by this Court, mainly for the reasons that the two provisions namely Proviso to Section 372 and sub-section 4 of Section 378 are operating in separate fields, but, it appears to be overlaping and it appears that both remedies are available, whenever the complainant and victim are coinciding with each other, but, there are several cases in which the complainant and the victi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o is complainant has right to prefer an statutory appeal as victim also and whenever, statutory right to prefer an appeal is also provided under this special enactment, we are not inclined to give special leave to prefer an appeal under Sub-section 4 of Section 378 of Code of Criminal Procedure. It has been held by this Court in the case of Vivekanand Pathak and another Vs. State of Jharkhand and others , reported in 2013 (1) JLJR 1 in paragraph 6 as under : VII. In view of the aforesaid sub-section, the present application has been preferred for getting Special Leave to Appeal. We are not in agreement with the counsel for the petitioners mainly for the reason that in the facts of the present case, when the victim and the compla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he can approach the higher forum. Thus, the petitioners are not remedyless. Moreover, the higher forum will have an advantage of one more judgment over and above, the judgment of lower court on the point of facts and law. In a judicial hierarchy, instead of approaching directly higher forum, if law permits, always matter should be filed in lower forum. Against the judgment and order of learned single judge of the High Court, whenever Letters Patent Appeal or any appeal, is tenable, normally Special Leave to Appeal under Article 136 of the Constitution of India is not granted. (Emphasis Supplied) In view of the aforesaid decision, whenever statutory right to prefer an appeal is given to a victim (who is incidentally also a compla ..... X X X X Extracts X X X X X X X X Extracts X X X X
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