2013 (4) TMI 889 - HC - Indian Laws

Summary

Issues involved: Appeal against judgment and order of acquittal u/s 138 of Negotiable Instrument Act; Availability of alternative remedy u/s 372 Proviso and 378(4) of Code of Criminal Procedure.

Judgment Summary:

Issue 1: Appeal against acquittal u/s 138 of Negotiable Instrument Act
The appellant filed an appeal against the judgment and order of acquittal passed by the Judicial Magistrate First Class, Dhanbad in a case u/s 138 of the Negotiable Instrument Act. The appellant, being the complainant, sought special leave to prefer the appeal. The High Court, after hearing both sides, found no reason to grant special leave to appeal, as the appellant had an alternative statutory remedy available. The Court noted that the appellant, being both complainant and victim, had the right to prefer a statutory appeal u/s 372 Proviso of the Code of Criminal Procedure. The Court emphasized that the victim has a statutory right to appeal in such cases, and hence, special leave was not granted.

Issue 2: Availability of alternative remedy u/s 372 Proviso and 378(4) of CrPC
The Court considered the arguments presented by both parties regarding the availability of alternative remedies u/s 372 Proviso and 378(4) of the Code of Criminal Procedure. It was highlighted that the appellant, being the complainant and victim, had the right to prefer a statutory appeal. The Court rejected the contention that the provision of 378(4) of CrPC would be redundant, stating that both provisions operate in separate fields. It was clarified that when the complainant and victim are the same person, they must avail the statutory remedy of appeal rather than seeking special leave directly. The Court cited a previous judgment to support its decision that when a victim (who is also the complainant) has a statutory right to appeal, special leave under 378(4) of CrPC cannot be granted.

Conclusion:
In light of the facts, reasons, and legal precedents, the High Court dismissed the appeal, stating that the appellant had a statutory right to prefer an appeal as a victim. The Court emphasized that the appeal was not decided on its merits, and any delay in filing the appeal would be condoned by the Lower Appellate Court. The appellant was advised to pursue the statutory appeal in accordance with the law and evidence on record.