IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Criminal Misc. No. M-5825 of 2008
Date of decision : July 22, 2009
Paramdeep Singh
....Petitioner
versus
State of Punjab and another
....Respondents
Coram: Hon'ble Mr. Justice L.N. Mittal
Present : Mr. PS Ghuman, Advocate, for the petitioner
Mr. Ranjit Singh, husband and attorney of
respondent No. 2 in person
L.N. Mittal, J. (Oral)
Paramdeep Singh has filed this petition under section 482 of
Code of Criminal Procedure (for short, Cr.P.C. ) assailing order dated
13.7.2007, Annexure P/1 passed by learned Additional Sessions Judge
(Adhoc), Jalandhar.
This case has a chequered history. Respondent No. 2 Swarn
Kaur filed complaint under section 138 of the Negotiable Instruments Act,
1881 (in short, the Act) read with sections 406 and 420 IPC against the
petitioner. In the said complaint, the petitioner was summoned for
offence under section 138 of the Act only. After appearance of the
petitioner, learned Judicial Magistrate Ist Class, Jalandhar vide order dated
28.4.2005, Annexure P/3 discharged the petitioner and dismissed the
Criminal Misc. No. M-5825 of 2008 -2-
complaint. Since offence under section 138 of the Act is triable as a
summons case, the discharge amounted to acquittal. Complainant-
respondent no. 2 preferred revision petition against order dated 28.4.2005,
Annexure P/3. The said revision petition was dismissed by learned
Additional Sessions Judge (Adhoc) Jalandhar vide judgment dated
11.9.2006, Annexure P/6, on merits as well as holding the revision petition
to be not maintainable as the order of discharge amounting to acquittal was
appealable. Thereafter the complainant filed petition for leave to appeal
bearing Criminal Appeal No. 660-MA of 2006. Following order Annexure
R-2/1 was passed in the said appeal on 19.12.2006 :-
“Dismissed as withdrawn. Appellant may move the court of
Sessions.”
In view of the aforesaid order, the complainant filed appeal
before Sessions Court assailing order dated 28.4.2005, Annexure P/3,
whereby the petitioner stood discharged/acquitted. The said appeal has
since been allowed by learned Additional Sessions Judge (Adhoc),
Jalandhar vide impugned judgment dated 13.7.2007, Annexure P/1,
ordering re-trial by the trial Magistrate. This judgment Annexure P/1 has
been challenged in the instant petition filed under section 482 of the Code
of Criminal Procedure.
I have heard learned counsel for the petitioner and attorney of
respondent no. 2 in person and perused the case file.
Even after amendment of Cr. P.C., appeal against aquittal can
be filed before the Session Court by the State under sub-section (1) of
Criminal Misc. No. M-5825 of 2008 -3-
section 378 Cr.P.C. whereas appeal by the complainant can be filed only in
the High Court under sub-section (4) of section 378 Cr.P.C. and that too
after leave to appeal is granted by the High Court. It is, thus, apparent that
appeal on behalf of complainant-respondent no. 2 against order of
discharge/acquittal, Annexure P/3, passed by learned Judicial Magistrate
was not maintainable before the Session Court.
In view of the aforesaid, the instant petition is allowed and
impugned judgment dated 13.7.2007 Annexure P/1 passed by learned
Additional Sessions Judge (Adhoc),Jalandhar is quashed. However,
complainant-respondent no. 2 shall be at liberty to apply for revival of
Criminal Appeal No. 660-MA of 2006 or for filing fresh petition for leave
to appeal under section 378(4) Cr.P.C. to assail order dated 28.4.2005,
Annexure P/3 but I am not expressing any opinion regarding availability or
non-availability of any such remedy under the law or the merit thereof.
( L.N. Mittal )
July 22, 2009 Judge
'dalbir'