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138 ni act appeal against acquital (Criminal Law)

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This query is : Resolved


Author : nilesh j rathi

Posted On 21 January 2012 at 21:44

in a complaint u/s 138 NI act the accused is acquitted.
where should the compalinant file appeal .
should it be before the sessions court as per the 2009 amendment u/s 372 Cr,pc
should it be before the High court u?s 378(4)

there seems confusion.
also consider the amended def n of victim.




Expert : Advocate. Arunagiri

Posted On 21 January 2012 at 22:07

Before the High court u/s 378(4) of cr.p.c.



Expert : Thangapandian

Posted On 21 January 2012 at 22:39

yes.. sec. 378(4) of cr.p.c. is correct provision for your case..

-tom-



Expert : Ravikant Soni

Posted On 21 January 2012 at 22:54

Yes before high court only.



Expert : C. P. CHUGH

Posted On 21 January 2012 at 23:25

Yes before High Court only.



Expert : raj kumar makkad

Posted On 22 January 2012 at 10:45

I differ with the views of experts. Why the provision of appeal before Sessions Judge should not be used in the given case under section 372 Criminal Procedure Code?

You can file appeal before Sessions Court and need not go to High Court at this stage.



Expert : Advocate Sachdev Bishnoi

Posted On 22 January 2012 at 10:48

rightly advised by the experts.



Expert : R.Ramachandran

Posted On 22 January 2012 at 10:50

Dear Mr. Bishoi,
Can you be more specific? Of the several experts who answered, which expert, according to you, advised correctly?



Expert : V R SHROFF

Posted On 22 January 2012 at 10:59

Go to Sessions,VT, against order of JMFC acquittal, if fails then to HC, SC [Appli Thane ct] for Mumbai Metropolitan Magistrate, it differ HC]



Expert : ADVOCATE DEFENSE.

Posted On 22 January 2012 at 11:05

Against acquittal appeal / revision before HC only.



Expert : raj kumar makkad

Posted On 22 January 2012 at 11:05

Bishnoi! At least you would have gone through the difference of opinion expressed before your 'good' advice.



Expert : Devajyoti Barman

Posted On 22 January 2012 at 11:52

appeal lies either in sessions court or high court.
Even Revisional power of the high court u/s 401 could be exercised against the decision for remanding back the case purpose only.



Expert : ajay sethi

Posted On 22 January 2012 at 12:23


in view of latest judgement of bombay high courtconsidering the amended law appeal would lie to high court .



Expert : ajay sethi

Posted On 22 January 2012 at 12:23

Bombay High Court
M/S. Infosoft Systems & Others vs Mr. Dewada, Adv. For on 16 June, 2011
Bench: M.N. Gilani
1

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

Criminal Application (APPA) No.708/2010

( M/s. Top Notch Infotronix (I) Pvt. Ltd., through one of its duly authorized Officer ..Vs..

M/s. Infosoft Systems & others )

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions

and Registrar's orders

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. Amit Khare, Adv. for applicant/appellant. Mr. Dewada, Adv. for respondents.

CORAM : M.N. GILANI J.

DATE : 16.6.2011.

This is an application under section 378(4) of the Criminal Procedure Code seeking leave to file an appeal against the order of acquittal passed by learned Judicial Magistrate, First Class (24th Court), Nagpur in Summary Criminal Case No.13119/2008.

Mr. Dawada, learned counsel appearing for the respondents, raised a preliminary objection about the maintainability of the appeal before this Court. According to him proviso to section 372, inserted by the Code of Criminal Procedure Amendment Act, 2008 (for short Act of 2008), which came into force with effect from 31st of December 2009, the forum for appeal would be the Sessions Court and not the High Court. Proviso to section 372 reads as under :- "Provided that the victim shall have a right to prefer an appeal against any order passed by the 2

Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court."

While inserting the aforesaid provision the definition of 'victim' has also been incorporated as section 2(wa) which reads as under :-

"victim" means a person who has suffered

any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir.

According to learned counsel for the respondents expression 'victim' has to be given wider meaning to include complainant in a complaint case. Being a victim he chooses to file complaint case as such, the complainant cannot be excluded from the term 'victim' occurring under section 2(wa) of the Code of Criminal Procedure. Whenever there is an order of acquittal and if victim, may be in the capacity of complainant, is not satisfied with the said order, he has been conferred with a right to question the judgment and the forum has also been specified in the proviso to section 372 of the Criminal Procedure Code. According to him, forum would be the Court where ordinarily the appeal lies against the order of conviction of such Court. Admittedly, appeals 3

against the order of conviction, recorded under section 138 of the Negotiable Installments Act, are filed before the Court of Sessions. Therefore, an appeal against the order of acquittal should also lie before the Court of Sessions, he urged. I am not in agreement with the contention raised by learned counsel for the respondents. Section 378 exclusively deals with appeal in case of acquittal. Because of the recent amendment which has come into force from 23/6/2006 two forums are available for filing an appeal against the order of acquittal. In respect of a cognizable and non-bailable offences, the District Magistrate may direct the Public Prosecutor to present an appeal to the Court of Sessions. In other cases, the State Government or the Central Government, as the case may be, may direct the Public Prosecutor to present an appeal to the High Court. The Criminal Procedure Code makes distinction between the case filed by the complainant and the case filed on the police report. If the case is instituted otherwise than upon a police report that means if it is a complaint case and the accused is acquitted, the complainant has a remedy to assail an order by resorting to the provisions of section 378 (4) of the Criminal Procedure Code which reads as under :- " If such an order of acquittal is passed in any case instituted upon complaint and the High 4

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."

Before Act of 2008 came into force, "victim" in a criminal case, instituted on a police report, had no right to file an appeal against the order of acquittal to any Court. However, in a complaint case, right in the form of provisions under section 378(4) of the Criminal Procedure Code was already in existence. The Law Commission in its 154th report recommended comprehensive amendments to the Code of Criminal Procedure relating to various provisions concerning arrest, custody, compounding of offences, victimology etc. In the statement of objects and reasons of Act of 2008 it is mentioned in para 2 that "at present, the victims are the worst sufferers in a crime and they don't have much role in the court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system."

Thus based on the 'doctrine of victimology' proviso to section 372 and the definition of 'victim' have been incorporated w.e.f. 31st December 2009 thereby the victims have not been left at the mercy of the State Government or the Central Government (as the case may be) or the District 5

Magistrate. The aforesaid provision does not in any manner affect provisions of section 378(4) of the Criminal Procedure Code dealing with the appeal against the order of acquittal in any case instituted upon complaint.

In this view of the matter, appeal against an order of acquittal, passed in the case instituted by the appellant, for the offence punishable under section 138 of the Negotiable Instruments Act would lie to this Court. I, therefore, do not find any force in the preliminary objection, raised by the learned counsel for the respondents.

Turning to the facts of the case, learned Magistrate in para 11 of his judgment observed :

"It would be appropriate to mention the admitted facts on record. It is admitted by the accused persons that they used to purchase materials from the complainant. The signature on cheque at Exh.24 is admitted by the accused person. Issuance of demand notice by the complainant is also admitted and reply to said notice by the accused persons is also admitted by the complainant."

In this view of the matter, I find that the arguable points are involved. Hence leave, as prayed for, is granted. JUDGE

Tambaskar.



Author : nilesh j rathi

Posted On 22 January 2012 at 14:18

the amend of 2005 on sec 378(3) had already clearified that leave has to be obtained only if to the high court,
that says that before the sessions ,appeal can be filed with out leave.
then that be the position what is effect of 372 ammend and victim amendment



Expert : ADVOCATE DEFENSE.

Posted On 22 January 2012 at 15:07


In this view of the matter, appeal against an order of acquittal, passed in the case instituted by the appellant, for the offence punishable under section 138 of the Negotiable Instruments Act would lie to this Court. I, therefore, do not find any force in the preliminary objection, raised by the learned counsel for the respondents.

LOUD AND CLEAR APPEAL TO HIGH COURT ONLY.



Expert : ADVOCATE DEFENSE.

Posted On 22 January 2012 at 15:18

MR RATHI THERE ARE NOT TWO PLACES FOR APPEAL AGAINST ACQUITTAL AS YOU PRESUME BUT FOR NI 138 ONLY HIGH COURT. PLEASE READ THE BELOW PORTION AGAIN CAREFULLY-


If the case is instituted otherwise than upon a police report that means if it is a complaint case and the accused is acquitted, the complainant has a remedy to assail an order by resorting to the provisions of section 378 (4) of the Criminal Procedure Code which reads as under :- " If such an order of acquittal is passed in any case instituted upon complaint and the High 4

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."



Expert : prabhakar singh

Posted On 22 January 2012 at 19:43

So it is high court.



Expert : Shonee Kapoor

Posted On 01 February 2012 at 00:08

Agree with experts - HIGH COURT/

Regards,

Shonee Kapoor
harassed.by.498a@gmail.com



Expert : Arun Kumar Bhagat

Posted On 10 March 2012 at 11:17

Appeal will lie to Sessions Court u/s 372 proviso.



Expert : J K Agrawal

Posted On 08 May 2012 at 20:38

Dear Sirs

In a latest Judgment dated 01-05-2012 the Honable Rajasthan High Court pleases to decide that only Sessions Court has Jurisdiction and Leave to appeal filed before the High Court is not maintainable.

1. S.B.Crl.Leave to Appeal No.193/2011. Laxmilal Menariya. VS. Rajendra Kumar.
2. S.B.Crl.Leave to Appeal No.230/2011. Ramavtar Gupta. VS. Ravindra Kumar.
3. S.B.Crl.Leave to Appeal No.6/2012. Ashok Kumar. VS. State of Raj. & Anr. 01.05.2012



Author : nilesh j rathi

Posted On 05 October 2012 at 20:41

thanks to all the experts



Expert : prabhakar singh

Posted On 05 October 2012 at 20:46

Many conflicting views when found apply your own wisdom.



Expert : Arun Kumar Bhagat

Posted On 07 October 2012 at 12:51

Appeal will lie to Sessions Court u/s 372 proviso. If do not want to avail opportunity then High Court after obtaining leave..


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