TaxTMI 
TaxTMI 
TaxTMI 
2014 (9) TMI 1136
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....s limited legal question and have examined the record. Appellant's counsel urged that after the Amendment Act 5 of 2009, amending Section 372 Cr.P.C. incorporating a right of appeal to the victims and also introducing definition of 'victim', as per Section 2(wa) of Cr.P.C., the appellant being the complainant-cum-victim was entitled to prefer appeals against orders of acquittal under Section 138 N.I. Act under Section 372 Cr.P.C. Learned counsel for the respondents challenging the maintainability of appeals under Section 372 Cr.P.C. urged that proper remedy to impugn acquittal orders was to file Special Leave Petition under Section 378 (4) Cr.P.C. Section 372 Cr.P.C. was not intended to cover the complainants, who already had statutory remedies to file appeals. 4. Admitted position is that the appellant is aggrieved by the orders of acquittal in complaint cases under Section 138 N.I. Act. Moot question is whether an acquittal order can be challenged under Section 372 Cr.P.C. or special leave is required to prefer an appeal under Section 378 (4) Cr.P.C. Various High Courts have taken different views and are at variance on this issue. The decisions are not uniform. 5. S....
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....vision Application No.100/2013, decided on 09.12.2013 against acquittal order in the proceedings under Section 138 N.I. Act, it held that the appeal under Section 372 IPC was not maintainable. The proviso to Section 372 Cr.P.C. was inserted by Section 29 Cr.P.C. [Amendment Act, 2008 (5 of 2009)] with the object of giving an opportunity to the persons who were affected by the decision of the Court, but who had not been given right to file any appeal under the provisions of the Code, to challenge such decision by filing an appeal. 8. Decisions of the Rajasthan High Court are conflicting. In 'Laxmilal Menariya & ors. vs. Rajendra Kumar & ors.' S.B.Criminal Leave to Appeal No.193/2011; 'Ram Avtar Gupta vs. Ravindra Kumar', S.B.Criminal Leave to Appeal No.230/2011 and 'Ashok Kumar vs. State of Rajasthan', S.B.Criminal Leave to Appeal No.6/2012 decided on 01.05.2012, it was held that the remedy to challenge the acquittal under Section 138 N.I. Act was under Section 372 Cr.P.C. However, in 'Nathu Ram Bansal vs. State of Rajasthan & anr.', S.B.Criminal Leave to Appeal No.74/2012 decided on 28.02.2013, a contrary view was taken and it was held that against a....
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....mplaint-cases whose right to appeal have been recognized under proviso to Section 372, are not required to seek „leave‟ and „special leave‟ to appeal from the High Court in the manner contemplated under Section 378(3)& (4), for the Legislature while enacting proviso to Section 372 has prescribed no such fetter nor has it applied the same language used for appeals against acquittals while enacting sub-Section (3) & (4) of Section 378 of the Code." 10. At the outset, it may be mentioned that discussion would be restricted only to the remedy available in complaint cases instituted under Section 138 N.I. Act, in case they end up in acquittal i.e. whether to prefer appeal under Section 372 or 378(4) Cr.P.C. 11. Chapter XVII comprising Section 138 to Section 142 N.I. Act was introduced in the Statue by Act of 66 of 1988. The object underlying the provision contained in the said chapter was aimed at inculcating faith in the efficacy of banking operations and giving credibility to the negotiable instruments as a trustworthy substitute for cash payment in business and day to day transactions by making dishonour of the such instruments an offence. The said provision....
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....o had practically no role to play in the criminal proceedings and who were to remain as mute spectators even though they were the really affected parties. It was with that object that the amendment to Section 372 Cr.P.C. was made and the definition of 'victim' was incorporated. It was not to cover a situation where the complainant in a private complaint under Section 138 N.I.Act, already had a remedy by way of appeal for redressal of his grievances. The 'complainant' in 138 proceedings cannot be equated or treated at par with 'victims' for whose benefit the amendments have been brought into existence. This was meant for those 'victims' on whose behalf primarily State used to prosecute the offender(s). In case of acquittal, it was left to the State to challenge the order in appeal and the victim had no say. The amendments in question gave a voice to the victims to challenge the acquittal by filing an appeal under Section 372 Cr.P.C. It was a right conferred upon the victims to prefer an appeal on limited grounds enumerated in the proviso to Section 372 of the Code. It is a separate and independent statutory right and is not dependent either upon or is....
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....ould lie to the Sessions Court under Section 378 (1) of the Cr.P.C. Again, this order was challenged by the accused before the Supreme Court and Supreme Court held : „....we conclude that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file such appeal in the Sessions Court. The complainant can challenge the order of acquittal by filing an application for special leave to appeal in the Delhi High Court and not in the Sessions Court....‟ 15. Of course, the scope of Section 372 Cr.P.C. and subsequent amendments in Cr.P.C. (Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) did not come for consideration before the Supreme Court in this case. But it cannot be assumed that the Supreme Court was not aware of the existence of the provisions of Section 372. The Supreme Court further observed : "Thus, whether a case is a case instituted on a complaint depends on the legal provisions relating to the offence involved therein. But once it is a case instituted on a complaint and an order of acquittal is passed, whether the offence is bailable or non-bailable, cognizabl....