HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.1939 OF 2008 DATE: 12-08-2011 BETWEEN: Girijala Umamaheswari. - - - Petitioner/ Accused. AND Andhavarapu Umasankar and The State of A.P., Rep. by Public Prosecutor, High Court of A.P., Hyderabad. - - Respondents/ Complainant. This Court made the following : HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY CRIMINAL PETITION No.1939 OF 2008 ORDER: This Criminal Petition is filed by the Petitioner/Accused (For short, ‘the accused’) under Section 482 of Cr.P.C. seeking to quash order dated 05-10-2007 passed in Criminal Revision Petition No.14 of 2006, on the file of II Additional District and Sessions Judge (FTC). 2. Whereas the Petitioner is the Accused, the Respondent No.1 is the complainant in C.C. No.671 of 2005. For the sake of convenience, I refer the parties as arrayed in the Calender Case. 3. Heard the learned counsel for the Accused and the learned Additional Public Prosecutor appearing for the Respondents-State. 4. The Calender Case was filed by the Complainant/Respondent No.1 seeking to punish the Petitioner/Accused for offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (For short, ‘the N.I. Act’). Section 256 Cr.P.C. reads as follows : “Non-appearance or death of complainant - (1) If the summons has been issued on complaint and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall notwithstanding anything hereinbefore contained, acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case to some other day: Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. (2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non- appearance of the complainant is due to his death.” 5. It is the contention of learned counsel for the Accused that by virtue of sections 278 (4) Cr.P.C. the Complainant should have preferred only Appeal against the order of acquittal or judgement of acquittal passed in the Calender Case and therefore preferring the Criminal Revision Petition before the Sessions Court, Srikakulam is not tenable. 6. Now the point for consideration is whether there are sufficient grounds to quash the order passed in the Criminal Revision Petition No. 14 of 2006? 7. The relevant provisions in this behalf are Sections 372 and 378 Cr.P.C. : Sections 372 Cr.P.C. reads as follows : “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.” Section 378 Cr.P.C. reads as follows : “Appeal in case of acquittal-- (1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court or an order of acquittal passed by the Court of Session in revision. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi _ Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the. Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3), to the High Court from the order of acquittal. (3) No appeal under sub-section (1) or sub- section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under sub- section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub- section (2).” 8. Therefore, by virtue of Section 256 Cr.P.C. by the impugned order, the accused was acquitted of the charge under Section 138 of the N.I. Act. Further, therefore by virtue of Section 378 (1) Cr.P.C. an appeal should have been preferred against the acquittal, which was not done. Therefore, filing of the Criminal Revision Petition before the Sessions Court is not tenable and hence the Criminal Petition is allowed quashing the order dated 05-10-2007 passed in the Criminal Revision Petition No.14 of 2006, on the file of II Additional District and Sessions Judge (FTC). __________________________ G. KRISHNA MOHAN REDDY, J Dated: 12-08-2011. Dsh. THE HON’BLE SRI JUSTICE G. KRISHNA MOHAN REDDY 140 CRIMINAL PETITION No.1939 OF 2008 August, 12, 2011 DSH