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TMI Blog2014 (9) TMI 1136X X X X Extracts X X X X X X X X Extracts X X X X ..... available to the complainants under Section 138 N.I.Act against order of acquittal is only to seek special leave before filing an appeal under Section 378 (4) Cr.P.C. before the High Court. In the instant case, the appellant has not sought any such leave - appeals filed by the appellant are dismissed as not maintainable. X X X X Extracts X X X X X X X X Extracts X X X X ..... , Acquittal Appeal (DB) No.4 of 2013, decided on 15.04.2013, in a detailed judgment observed that when the victim and the complainant are the same person(s), then the complainants have a right to prefer statutory appeal under Section 372 Cr.P.C. The appellant therein had sought leave to prefer appeal under Section 378 (4) Cr.P.C. to impugn acquittal order in the proceedings instituted under Section 138 N.I. Act. 6. In 'Ashok Kumar Srivastava and others vs. State of UP and another', 2012 LawSuit (All) 415, decided by High Court of Allahabad on 30.03.2012, a complaint case was filed by the victim under Section 200 Cr.P.C. The accused persons were acquitted of the charges under Sections 498A/323/504/506 IPC and 3/4 Dowry Prohibition Act. The Allahabad High Court held that under Section 372 Cr.P.C. the complainant who was a 'victim' was entitled to prefer an appeal under Section 372 Cr.P.C. 7. High Court of Bombay has been consistent in its approach and in various decisions have taken the view that complainant in a private complaint which ends up in acquittal is not entitled to take the benefit of the proviso of Section 372 Cr.P.C. In 'Ganesh Bandu Badgujar vs. Ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n be summed up to say that - (i) the „complainant‟ in a complaint-case who is a „victim‟ also, shall continue to avail remedy of appeal against acquittal under Section 378(4) only except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an inadequate compensation, for which he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an adequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372; (ii) the "victim‟, who is not the complainant in a private complaint-case, is not entitled to prefer appeal against acquittal under proviso to Section 372 and his/her right to appeal, if any, continues to be governed by the unamended provisions read with Section 378(4) of the Code; (iii) the Legislature has given no separate entity to a „victim‟ in the complaint-case filed by a public servant under a special Statute and the appeal against acquittal in such a case can also be availed by the „complainant‟ of that case und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned fails to pay the amount covered by the cheque. The offences are bailable, compoundable and non-cognizable. The proceedings can be instituted only by filing a complaint case under Section 200 before the Court of a competent jurisdiction. No Court is to take cognizance of said offence except upon a complaint in writing made by the payee or the holder in due course of the cheque. No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any such offence. Needless to say that State / Police has no role to regulate the proceedings / transactions. The proceedings under N.I.Act can well be differentiated from other penal statutes. 12. Prior to the amendments in Cr.P.C. before 31.12.2009, a complainant in a complaint case initiated under Section 138 N.I. Act could challenge an acquittal order only in an appeal before the High Court under Section 378 (4) Cr.P.C. Such appeal would be maintainable only if the appellant / complainant was granted Special Leave to prefer appeal. In my view, amendments w.e.f. 31.12.2009 introducing Section 2 (wa) and Section 372 Cr.P.C. did not bring any change in this regard. The purpose and object of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.C. were for 'victims' who were the worst sufferers in a crime and did not have much role in the Court proceedings. To avoid distortion of the Criminal Judicial System, they were given certain rights. 14. The controversy now is no longer res integra in view of the pronouncement of law by Supreme Court in 'Subhash Chand vs. State (Delhi Administration)', (2013) 2 SCC 17. It was a complaint case under Section 7 of Prevention of Food Adulteration Act, in which Subhash Chand was tried and he was acquitted by the learned Metropolitan Magistrate. The State filed criminal appeal before the Sessions Court under Section 378 (1)(a) Cr.P.C. Preliminary objection regarding maintainability of the appeal before the Sessions Court was rejected. That order was challenged before this Court (Delhi High Court) and it was held that Sessions Court had no jurisdiction to entertain the appeal. The order of the High Court was challenged before the Supreme Court who remanded the case to this Court for fresh decision after taking into consideration the provisions of Sections 378(1) and 378(4) of Cr.P.C. and the relevant provisions of the Prevention of Food Adulteration Act. After remand, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffence, no leave is necessary at the instance of a victim, whether he is the complainant or not.' 17. Kerala High Court has also in a latest Division Bench judgment in 'Omana Jose vs. State of Kerala', ILR 2014 (2) Kerala 669 decided on 11.04.2014 on reference of Criminal Revision Petitions in the light of conflicting decisions in 'Sree Gokulam Chit and Finance Co.(P) Ltd. and another vs. T.Krishnakumar and others', 2013 (4) KLT 547 (supra) and 'Shibu Joseph & ors. vs. Tomy K.J. & ors.', ILR 2013 (4) Ker.866, concluded : "For the aforesaid reasons, we hold that the complainant in a case under Section 138 of the Negotiable Instruments Act cannot challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the Cr.P.C. and his remedy is only to file an appeal to the High Court with special leave under Section 378 (4) Cr.P.C." 18. Considering all the relevant provisions, I am of the considered view that the remedy available to the complainants under Section 138 N.I.Act against order of acquittal is only to seek special leave before filing an appeal under Section 378 (4) Cr.P.C. before the High Court. In the ins ..... X X X X Extracts X X X X X X X X Extracts X X X X
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