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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.
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