Appeal against acquittal 138 ni act

R S TOOR (Querist) 20 August 2012 This query is : Resolved
If someone filed a Appeal against Acquittal under 138 NI Act in Session Court, does appeal shall be maintainable in Session court or appellant should go to High Court.

Please advise.

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ajay sethi (Expert) 20 August 2012
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 )

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and Registrar's orders

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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.