2012 (5) TMI 777 - HC - Indian Laws

Maintainability of appeal - offence under NI Act - Held that - In the case of conviction by the Court of Magistrate for the offence under Section 138 of the Negotiable Instrument Act the appeal would lie to the court of Sessions and therefore in the present case keeping in view the proviso to Section 372 Cr.P.C. it is of the view that the appellants/applicants should have preferred an appeal under the proviso to Section 372 Cr.P.C. before the court of Sessions. In that view of the matter the appellants/ applicants need not have preferred the leave to appeal applications which have been filed before this court directly without filing the appeals before the court of Sessions. These leave to appeal-applications accordingly stand dismissed as not maintainable.

Summary

Issues:
Appeal under Section 138 of the Negotiable Instrument Act dismissed by Magistrate - Interpretation of proviso to Section 372 Cr.P.C. - Definition of "victim" under Section 3(wa) of Cr.P.C. - Right of victim to prefer appeal against court's order - Jurisdiction for appeal in case of conviction under Section 138 of NI Act.

Analysis:
The judgment pertains to appeals filed by complainants whose complaints under Section 138 of the Negotiable Instrument Act were dismissed by the Magistrate. The appeals were filed under sub-section (4) of Section 378 Cr.P.C. The crucial aspect considered in this case is the interpretation of the proviso to Section 372 Cr.P.C., added by an amending Act, which grants the "victim" the right to appeal against court orders. The definition of "victim" under Section 3(wa) of Cr.P.C. includes a person who has suffered loss or injury due to the act for which the accused is charged.

The court emphasized that a person who has suffered losses due to the dishonour of a cheque under Section 138 of the NI Act falls within the definition of "victim." Therefore, such a victim has the right to prefer an appeal against court orders, as per the newly added proviso to Section 372 Cr.P.C. In cases of conviction under Section 138 of the NI Act, the appeal would lie to the court of Sessions. The judgment highlights that the appellants should have preferred appeals before the court of Sessions under the proviso to Section 372 Cr.P.C., instead of directly filing leave to appeal applications before the High Court.

Consequently, the leave to appeal applications were dismissed as not maintainable, with the appellants advised to file appeals before the court of Sessions. The court directed the return of certified copies of the judgment and vakalatnamas to the appellants' counsel, with the option for the appellants to seek condonation of delay. The judgment clarifies the proper jurisdiction for appeals in cases of conviction under Section 138 of the NI Act, emphasizing adherence to the proviso to Section 372 Cr.P.C. for filing appeals by victims.