1 Cri-A-5185-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPLICATION NO. 5185 OF 2009 IN CRIMINAL APPEAL NO. OF 2009 Vinod Mahendra Joshi & Anr. ... Applicants (Orig. complainant) vs. Shri Vijaysingh Ramkrishna Verma & Ors. Respondents (Resp.Nos. 12 & 3 - orig. accused Nos. 1,2 & 3) Mr. Pramit K.Mishra i/b. M/s. Bhandary and Bhandary,Advocate, for the applicants. Mr.Kuldeep S. Patil, Advocate, for the respondent No.1. Mr. Y.M.Nakhwa, APP, for the respondent No.4 - State. CORAM: J.H.BHATIA,J. DATE : 12th September, 2011. P.C. 1. Heard. 2. The applicants claim to be legal representatives of one Mahendra Joshi, who had initially filed a complaint against the respondent Nos. 1 to 3. On the basis of the complaint, the Metropolitan Magistrate had referred the matter to police for investigation under Section 156(3) of Cr.P.C. and after investigation, 2 Cri-A-5185-09.sxw charge sheet was filed against the accused No.1. Accused No.1 alone was put to trial for the offence punishable under Sections 464, 465, 467 and 420 of IPC in C.C. No.161/P/2002. It was alleged that accused No.1 had forged certain documents to show that the property of original complainant was transferred to him. On behalf of prosecution, only one witness - PW-1 Vinod Lakhamshi Shah was examined, who did not support. No other witness was examined inspite of repeated opportunities. 3. The legal heirs of original complainant seek to prefer appeal against acquittal and by this application, they have sought condonation of delay of 616 days in filing the appeal with application for leave. The application is opposed on several grounds. Firstly, there is no satisfactory explanation for the delay of 616 days. Secondly, in view of the provisions of Section 378(4) appeal against acquittal could be preferred by special leave in the high Court only if the order of acquittal was passed in any case instituted only upon the complaint and not when the charge sheet was filed by the police. Thirdly, the parties had settled the matter amicably and fourthly, the respondent Nos. 2 and 3 were not charge-sheeted nor they were put to trial and, therefore, the question of preferring appeal against them does not arise. 3 Cri-A-5185-09.sxw 4. After hearing the parties, I find substance in the defence argument on every point. Record reveals that though the complaint was field against three accused persons, being respondent Nos. 1 to 3, cognizance of the case was not taken on the basis of the complaint. The case was referred to police for investigation under Sec. 156(3) Cr. P.C. and after investigation, charge sheet was filed only against accused No.1. The judgment also reveals that only accused No. 1 was put to trial and was acquitted. In these circumstances, the question of filing appeal against accused Nos. 2 and 3 does not arise. 5. With effect from 31.12.2009, Sec. 372 Cr.P.C. was amended and a proviso was added whereby the victim shall have a right to prefer an appeal against order of acquittal or conviction for a lesser offence or inadequate sentence or compensation. In the present case, the order of acquittal was passed n 10.1.2008. The appeal against acquittal could be filed within 60 days by the State Government under Section 378 Cr.P.C. At that time, there was no right given to the victim to prefer appeal against order of acquittal in a case filed by the police. By subsequent amendment, which came into force from 31.12.2009, the original complainant or his legal representative could not be conferred with that right retrospectively. 4 Cri-A-5185-09.sxw 6. The learned Counsel for the respondent No.1/accused points out that the applicant No.1 Vinod Joshi had filed an affidavit-cum-declaration stating that his father, who had originally filed complaint, had died on 4.6.2003 and he himself had settled the matter with the accused No.1 who had purchased the property lawfully by paying consideration amount. He had withdrawn all the allegations against him. The record also reveals that he had moved an application before the trial Court to the effect that he did not want to prosecute the matter as it was already settled out of Court, but because certain offences were not compoundable, the Court did not take cognizance of such application. It appears that in view of this, no witnesses were examined on behalf of the prosecution. In these circumstances, there is no scope for preferring appeal. I also find that no satisfactory explanation is given for the delay of 616 days in filing the appeal. 7. Therefore, the application for condonation of delay stands rejected. (J.H.BHATIA,J.)