9911796707
TMI Blog2022 (3) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... an only be filed before the Sessions Court in respect of cognizable and non-bailable offence and all other cases where orders of acquittal have been passed, appeal can only be filed to the High Court. In the present case, the complaint case filed under Section 138 of the N.I. Act against the petitioner was dismissed in default on account of non appearance of the complainant - It is well settled principle of law that dismissal of a complaint in default of appearance of the complainant amounts to acquittal of the accused and the remedy to the complainant for filing an appeal against the said order of acquittal would lie before the High Court by filing leave to appeal and not before the Sessions Court. Petition allowed. - CRM-M-5961-20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aint under Section 138 of the N.I. Act and the petitioner was summoned to face trial and notice of accusation was served upon him to which he pleaded not guilty and claimed trial. Thereafter, on 22.02.2021, the matter was listed for CW's but despite repeated calls no one put in appearance on behalf of the complainant. Learned Judicial Magistrate First Class, Sirsa dismissed the complaint for want of prosecution. Relevant part of the said order is as under:- ....... It is 3:30 pm. The entire cause list of the day has been exhausted. Case has been again called several times but no one has appeared on behalf of complainant. Accordingly, the present complaint is hereby dismissed for want of prosecution ..... Feeling aggrieved, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal) 363. In Subhash Chand (Supra) it has been held that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file such appeal in the Sessions Court and quashed the impugned order holding that the case was not governed by Section 378(4) of the Cr.P.C. In Damodar S. Prabhu (Supra), it has been held as under:- 14. It may be noted here that Section 143 of the Act makes an offence under Section 138 triable by a Judicial Magistrate First Class (JMFC). After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal. In the case of conviction, an appeal would lie to the Court of Sessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court [not being an order under clause (a)][or an order of acquittal passed by the Court of Session in revision]. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the above referred judicial precedents and provisions of Section 378(4) Cr.P.C., it has become clear that in case of acquittal in a complaint case, the remedy before the complainant to file an appeal was only before the High Court. The said Section makes provision for appeal against an order of acquittal passed in case instituted upon complaint. Further, in view of Section 378(1)(a) and (b) of the Code, an appeal against an order of acquittal passed by the Magistrate can only be filed before the Sessions Court in respect of cognizable and non-bailable offence and all other cases where orders of acquittal have been passed, appeal can only be filed to the High Court. In the present case, the complaint case filed under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
