THE HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJU CRIMINAL APPEAL No.472 of 2006 Date: 14.02.2011 Between : N.Rameshbabu, S/o.Kondaiah … Appellant/Defacto complainant And 1. L.Jayaramieddy, S/o.Chenna Reddy & another. … Respondents HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.472 of 2006 JUDGMENT: This appeal is filed by the defacto complainant against judgment dated 28.02.2003 passed by the II Additional Judicial Magistrate of the First Class, Tirupathi in CC.No.198 of 1998 by which the lower Court acquitted the 1st respondent/accused for offence punishable under Section 138 of the Negotiable Instruments Act (in short, the Act). 2. CC.No.198 of 1998 was a case filed by the State, represented by the Sub-Inspector of Police, Central Crime Station, Tirupathi against the 1st respondent/accused in the lower Court. In fact, the lower Court should not have taken cognizance of the said offence under Section 138 of the Act, in view of Section 142(a) of the Act, which reads as follows: “ (a) No Court shall take cognisance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;” 3. Even though, the police filed the charge sheet alleging offences punishable not only under Section 138 of the Act, but also under Section 428 IPC, the lower Court took cognizance of the case for offence punishable under Section 138 of the Act alone. The said taking cognizance of offence punishable under Section 138 of the Act by the lower Court on a charge sheet filed by the Police, is not in accordance with law. When cognisance of the offence by the lower Court was not proper, in any event, the lower Court could not have convicted the accused for the said offence in such proceedings even after trial. 4. Further, this appeal is filed before this Court under Section 378(4) Cr.P.C. As per sub-section 4 of Section 378, the complainant is at liberty to file an application for Special Leave to appeal from the order of acquittal, in case, the case in the lower Court was instituted upon a complaint. The present case in the lower Court was not instituted by the complainant/appellant upon his complaint; but it was a case instituted by the State represented by the Police by way of filing charge sheet/final report under Section 173(2) Cr.P.C. Therefore, as against an order of acquittal passed by the Magistrate in such a case instituted upon by the Police, the State alone is competent to file an appeal against acquittal along with permission to grant leave to file the appeal. In that view of the matter, even this appeal is not maintainable at the instance of the appellant, who is the defacto complainant. Thus, on both the grounds, this appeal has no legs to stand. 5. In the result, the appeal is dismissed. __________________________ SAMUDRALA GOVINDARAJULU, J Dt: 14th February, 2011 ysk HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRIMINAL APPEAL No.472 of 2006 DATED:14.02.2011 ysk