2015 (2) TMI 1258 - HC - Indian Laws

Whether appeal can be maintained against the judgment of acquittal for an offence punishable under Section 138 of Negotiable Instruments Act before the jurisdictional Sessions Court under proviso to Section 372 of Cr.P.C.? - Held that - the word complainant under Proviso to Section 142 of N.I.Act and the victim under Section 2(wa) of Cr.P.C. are not one and the same - appeal filed under Proviso to Section 372 of Cr.P.C., is not maintainable - petition allowed - decided in favor of petitioner.

Summary

Issues:
1. Maintainability of appeal against judgment of acquittal under Section 138 of Negotiable Instruments Act before jurisdictional Sessions Court under proviso to Section 372 of Cr.P.C.

Analysis:
The High Court considered the issue of whether an appeal can be maintained against a judgment of acquittal for an offence under Section 138 of the Negotiable Instruments Act before the jurisdictional Sessions Court under the proviso to Section 372 of the Criminal Procedure Code (Cr.P.C.). The Court referred to a Supreme Court judgment which outlined the procedure for appeals in cases of conviction and acquittal under Section 138. In cases of conviction, appeals can be made to higher courts, whereas in cases of acquittal, the complainant can appeal to the High Court and subsequently to the Supreme Court. The Court also discussed various decisions cited by the respondent to support the contention that the complainant and victim are on the same footing, allowing the complainant to maintain an appeal under the proviso to Section 372 of Cr.P.C.

The Court further analyzed the definition of a complainant under Section 142 of the Negotiable Instruments Act and a victim under Section 2(wa) of the Cr.P.C. The proviso to Section 142 of the N.I. Act specifies the procedure for taking cognizance of offences under Section 138, emphasizing that the complainant must be the payee or holder in due course of the cheque. The Court concluded that the terms "complainant" under the proviso to Section 142 of the N.I. Act and "victim" under Section 2(wa) of the Cr.P.C. are distinct. Therefore, the Court held that an appeal filed under the proviso to Section 372 of Cr.P.C. is not maintainable by the complainant.

In the final judgment, the Court accepted the petition, set aside the impugned order, and granted the complainant the liberty to file an appeal based on the observations made in the judgment and in accordance with the law. The Court also allowed for the invocation of appropriate provisions of the Limitation Act in case of any delay in filing the appeal.