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2019 (12) TMI 99 - HC - Indian LawsAppropriate forum for appeal - Whether the appeal against acquittal in prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, would lie under Section 378(4) of the Code of Criminal Procedure or would be as per proviso below Section 372 of the Code of Criminal Procedure? HELD THAT - The right of appeal, being a statutory right, cannot be assumed unless expressly provided by the statute. The right of appeal is created by way of substantive provision in the statute. The Code of Criminal Procedure, though considered as a procedural law, it is a substantive law as far as right of appeal is concerned. For the purpose of trial of the offence under section 138 of the Act of 1881, as per Section 4(2) of the Code, the provisions in the Code are applicable. For the purpose of appeal against the order of conviction or the order of acquittal in a case instituted on private complaint, the remedy of appeal is already provided in the Code - Only on the basis of definition of 'victim' which came to be inserted by way of amendment in the year 2009 with avowed object in mind alongside the creation of right of appeal to the victims of crime, the same cannot be usurped for the purpose of offence under section 138 of the Act of 1881, unless expressly provided. The complainant of the offence under Section 138 of the Act of 1881, to whom the remedy of appeal against an order of acquittal to the High Court under Section 378(4) of the Code is already provided, cannot take recourse to proviso inserted to section 372 of the Code under the guise of the term 'victim' as used in the newly inserted proviso to section 372 of the Code. Here, the purpose for insertion of the said proviso was certainly not to provide additional remedy to the complainant in complaint cases under section 138 of the Act of 1881. In the case of SUBHASH CHAND VERSUS STATE (DELHI ADMINISTRATION). 2013 (1) TMI 943 - SUPREME COURT , it has been held that once a case is instituted on a complaint and an order of acquittal is passed, whether the offence be bailable or non-bailable, cognizable or non-cognizable, the complainant can file an application under Section 378(4) of the Code of Criminal Procedure for Special Leave to Appeal against an order of acquittal of any kind only in the High Court. The appeal against acquittal in prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, would lie under Section 378(4) of the Code of Criminal Procedure.
Issues Involved
1. Maintainability of an appeal against acquittal under Section 138 of the Negotiable Instruments Act, 1881. 2. Applicability of Section 378(4) of the Code of Criminal Procedure versus the proviso to Section 372 of the Code of Criminal Procedure. 3. Interpretation of the term "victim" and its relevance to private complaints under Section 138 of the Negotiable Instruments Act, 1881. Detailed Analysis 1. Maintainability of an Appeal Against Acquittal under Section 138 of the Negotiable Instruments Act, 1881 The primary issue was whether an appeal against acquittal in a prosecution under Section 138 of the Negotiable Instruments Act, 1881, should be filed under Section 378(4) of the Code of Criminal Procedure or under the proviso to Section 372 of the Code of Criminal Procedure. The court examined various judgments and legal provisions to determine the correct legal pathway for such appeals. 2. Applicability of Section 378(4) of the Code of Criminal Procedure versus the Proviso to Section 372 of the Code of Criminal Procedure The court noted that Section 378(4) of the Code provides a remedy for appeals in cases initiated upon private complaints, requiring special leave from the High Court. In contrast, the proviso to Section 372 grants victims the right to appeal against acquittals, convictions for lesser offenses, or inadequate compensation. The court emphasized that these provisions operate in distinct areas and should not be conflated. The court referenced the case of Shantaram s/o Laxman Tande v. Dipak s/o Madhav Gaikwad, which held that Section 378(4) and the proviso to Section 372 serve different purposes. 3. Interpretation of the Term "Victim" and Its Relevance to Private Complaints under Section 138 of the Negotiable Instruments Act, 1881 The court clarified that the term "victim" as defined in Section 2(wa) of the Code, introduced alongside the proviso to Section 372, was intended to provide relief to victims of crimes reported through police cases, not to complainants in private complaints under Section 138 of the Act of 1881. The court highlighted that the object of Section 138 is to enhance the acceptability of cheques and ensure credibility in banking operations, rather than to address public wrongs. Therefore, the complainant in a Section 138 case cannot be equated with a "victim" under the proviso to Section 372. Conclusion The court concluded that the appeal against acquittal in prosecution for the offense punishable under Section 138 of the Negotiable Instruments Act, 1881, would lie under Section 378(4) of the Code of Criminal Procedure. The court emphasized that the legal fiction created by Section 138 should not be extended beyond its intended purpose, and the special leave requirement under Section 378(4) serves as a check against frivolous litigation. The judgment underscored the distinct legal pathways for appeals in private complaint cases versus police cases, reaffirming the necessity of obtaining special leave for appeals under Section 378(4) in cases of acquittal under Section 138 of the Negotiable Instruments Act, 1881.
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