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2019 (12) TMI 99

..... 78(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 rem .....

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..... k s/o Madhav Gaikwad [Crl. Appeal No. 2651 of 2010, dated 6-5-2011] in support of his argument on maintainability of appeal u/s. 378(4) of the Code. In the said judgment, the learned Single Judge of this court took a view that the provisions of Section 378(4) of the Code and the proviso below Section 372 of the Code, operate in distinct areas. It is further recorded that the remedy under Section 378(4) of the Code will be available to the complainant in cases instituted upon private complaint and as per proviso below Section 372 of the Code, right of appeal will be available to the 'victim' in police cases where the State avoids or fails to file the same. 3. The learned referral Judge relied on the judgment of the Hon'ble Apex Court in the case of Mallikarjun Kodagil v. State of Karnataka [2019] 2 SCC 752, wherein their Lordships have taken a view that in the case of Bhauvuban Dineshbhai Makwana v. State of Gujarat [Crl. Appeal No. 238 of 2012, dated 18-3-2013], Gujarat High Court has made an artificial and unnecessary distinction between the "victim as a victim" and "victim as a complainant" in respect of filing of an appeal against an order of acqu .....

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..... o present an appeal to the High Court from an original or appellate order of an 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 than this Code, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal - (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an 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. (3) No appeal under sub-section (1) or sub- section (2) shall be entertained except with the leave of the High Court. (4) If such an order .....

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..... holder of a cheque has received the same towards discharge of liability. Section 140 of the Act specifically precludes the drawer from pleading that he had no reason to believe that the cheque would be dishonored. Under Section 142 of the Act, the offence has been specifically made cognizable only on the basis of a written complaint filed by the payee or holder in due course of the cheque. Section 142(b) prescribes a period of one month for filing a complaint from the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the Act of 1881. 11. The scheme of the provisions contained in the new Chapter would indicate that it is primarily to provide an additional criminal remedy over and above the civil remedies available under the law to the payee or holder in due course. It is an optional remedy available in addition to the ordinary civil remedies. There is no compulsion to the payee or holder in due course to file a complaint on commission of an offence by the drawer of the cheque. The right to prosecute the defaulting party to the contract between the payee and the drawer cannot be considered as one conferred for the benefit of the community as .....

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..... e Code is only and only to give voice to the erstwhile speechless victim in cases initiated on police reports. 15. On the contrary, in a case initiated by filing a private complaint before the Competent Court, in case of acquittal, the complainant was/is having remedy to file appeal under Section 378(4) of the Code. At the same time the State is also not debarred from filing appeal against acquittal in a case initiated on private complaint which is in the realm of public law wherein the crime is considered to have been committed against the society. As stated earlier, the purpose of introduction of Section 138 of the Act of 1881 and allied provisions in the Act of 1881 is only to give efficacy and to inculcate faith of the public in such transactions. Thus, the complainant as contemplated under Section 138 of the Act of 1881, cannot be treated as a victim under 'proviso' to Section 372 of the Code. 16. Provision of sub-clause (4) to Section 378 of the Code of obtaining Special Leave to file Appeal is an embargo to check frivolous and unwarranted litigations. "Prima facie" if no case is made out, leave to file an appeal is refused, thus the provision does not lead .....

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..... under Section 138 of the Act of 1881. Here, the State has no role to play at all. The purpose is to recover the amount as mentioned in the cheque and not to send the accused in jail for the commission of offence. The law permits compounding of offence at any stage, even after conviction and the result of compounding would be an acquittal/discharge of the accused. 21. On the other hand, in cases other than Section 138 Negotiable Instruments Act, the victim has to be contended with the punishment to the wrongdoer. However, for most of the times, the criminals get acquittal for one or the other reasons. The victim had no role to play at all. The purpose of bringing proviso to section 372, as stated earlier, was only to make victim of the crime active and authoritative. The definition of the 'victim' which was added simultaneously alongside the proviso to section 372 in the Code, is to be read for construing its meaning in the provisions of the Code only and cannot be stretched for the purpose of the Act of 1881, in the absence of any express provision in this regard. 22. The right of appeal, being a statutory right, cannot be assumed unless expressly provided by the statute. .....

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..... n Nagar [1985] 2 SCC 279, wherein it is held that under the normal rule of interpretation, the special provision must prevail over the general and if the case is covered by the special provision the general provision will not be attracted to it. 26. Section 372 of the Code is a general provision regarding appeals with wordings 'no appeal shall lie from any judgment or order of a Criminal Court except as provided by this Code or by any other law for the time being in force'. Sections 373, 374, 377, 378, 379 and 380 of the Code provide for remedy of appeal to the accused, the State and the complainant under different situations. Prior to insertion of proviso to section 372, there was no right of appeal available to the victim of the crime, who is considered to be the prime sufferer. Insertion of proviso to section 372 of the Code, here, does not mean that it has been added only as an exception to Section 372 of the Code. It is a substantive provision creating substantive right in favour of the victim to file an appeal against the order of acquittal or conviction for a lessor offence or imposing inadequate compensation. 27. In the case of Subhash Chand v. State (Delhi Administ .....

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..... ply only to those who fall within the proviso. The complainant in a private complaint would not be able to avoid the scrutiny of the Court for being granted the leave contemplated in Section 378(4) which provision stands." 29. In the case of Smt. P. Vijaya Laxmi v. Smt. S.P. Sravana 2018 Cri. L.J. 1338, the Division Bench of the Hyderabad High Court in paragraph No. 52 has held as under:- "52. Therefore, even as on the date of amendment of the Code vide the Act No.5 of 2009, a complainant in a case arising out of a private complaint had the right to prefer an appeal to the High Court against acquittal therein, with special leave. As rightly pointed out, it cannot be presumed that the legislature was unaware of the existing appellate remedy while creating a right of appeal in favour of a victim, by inserting Section 2(wa) in the Code along with a proviso to Section 372 thereof. Had it been the intention of the legislature to provide dual remedies to such a complainant by allowing him to come within the ambit of a victim under Section 2(wa) and avail the right of appeal under the proviso to Section 372, express mention would have been made of the same. Be it noted, Section .....

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..... the order of acquittal in a case instituted on private complaint also lies to the High Court. It appears, for petty and less serious offences, there are less number of further remedies. The offence punishable under Section 138 of the Act of 1881, being of quasi civil in nature and being considered as a petty and less serious offence, cannot be given the same treatment as is given to the offences under Penal Code or other enactments involving mens rea as a necessary ingredient. This may be another ground to reject the argument that the appeal against acquittal in cheque bouncing cases shall lie to the Sessions Court under 'proviso' to Section 372 of the Code. 33. As such, different High Courts have taken the same view. 34. Full Bench of Madras High Court, however, in the case of S. Ganapathy v. N. Senthilvel 2017 Cri. L.J. 602, has held that victim of a crime, who has prosecuted an accused by way of a private complaint, has a statutory right of appeal within the limits prescribed under Section 372 of the Code of Criminal Procedure. This view, for the aforesaid reasons is not acceptable. 35. Coming back to the referral order and on considering the facts and law referred above .....

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