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2019 (12) TMI 99

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..... ear 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 .....

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..... se 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 acquittal and proviso to Section 372 of the Code of Criminal Procedure does not introduce or incorporate any such distinction. 4. The learned referral Judge opined that the proposition laid down in the judgment in the case of Shantaram s/o Laxman Tande (supra) requires reconsideration in view of the opinion expressed by the Hon'ble Apex Court in the judgment of Mallikarjun Kodagali (supra). 5. We have extensively heard Shri Palash K. Mohta, learned counsel for the applicant and Shri Yash Maheshwari, learned counsel for the respondent. 6. Shri Mohta, learned counsel for the applicant took us through the relevant provisions of the Code and legal pronouncements of the Hon'ble Apex Court and different High Courts and submitted that almost all the High Courts are of the view that Appeal against Acquittal in a case initiated on private complaint would lie to the High Court af .....

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..... ate 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 of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2). 2(d) "complaint" means any allegation made orally or in writing .....

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..... 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 a whole. The state has no role to play. The object is to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable. So also, the object is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instrument. 12. Although, an omission to honour the cheque by the drawer is made an offence under the deeming fiction, it is basically in the realm of civil wrong and not the crime per se. The civil liability of a person has been converted into a criminal offence. 13. The offence under Section 138 of the Act of 1881, is not committed on the date of issuance of the cheque. The cause of action arises only after the cheque is dishonoured for specified reasons and thereafter even after demand, the person concerned fails to pay the amount covered by the cheque. The offences are bailable, compoundab .....

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..... ' 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 to an inference that there is no statutory remedy of an appeal against acquittal. 17. Section 142-A inserted by the Act of 26 of 2015 with effect from 15.06.2015, Sections 143 to Section 147 inserted by Act of 55 of 2002 with effect from 06.02.2003 and Sections 143-A and Section 148 have been inserted vide Act 20 of 2018 with effect from 02.08.2018 as well as some Sections from 138 to 148 of the Act of 1881 start with non-obstante clause which show overriding effect of these provisions over the general provisions of Code of Criminal Procedure. These provisions deviate from the general law with regard to the cognizance of offences, summary trial, mode of service of summons, evidence on affidavit, compounding of offences, interim compensation, etc. Even the 'mens rea' is excluded as a necessary ingredient of the offence under Section 138 of the Act of 1881. 18. It is .....

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..... n 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. 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. 23. In th .....

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..... 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 Administrations) [2013] 2 SCC 17, 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. 28. In the case of Balasaheb Rangnath Khade v. State of Maharashtra 2012 (3) Bom. C.R. (Cri.) 632, the Single Bench of this Court in paragraph Nos. 49, 50 and 57, it has been observed as under:- "49. The victim in a private complaint is in a diametrically position. That is the victim who has prosecuted the private complaint as a complainant. He/she was in control of the criminal prosecution. He/she decided who would be his/her witnesses and after a full and unfettered prosecution hi .....

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..... 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 397 of the Code specifically confers upon an aggrieved party the right of revision either before the Sessions Court or before the High Court and once the remedy of revision is invoked before either of the aforestated fora, a further revision would not lie thereunder to the other forum." 30. In the case of Selvaraj v. Venkatachalapathy, decided on 04-08-2014 in Criminal Appeal No. 20 of 2014, the Madras High Court opined that victim in Section 372 proviso would not include a complainant in a complaint case and the term victim used in the said proviso should be confined only to victims in cases instituted otherwise than on a complaint. 31. In the case of Top Notch Infotronix (I) (P.) Ltd. v. Infosoft Systems 2011 (6) Mh. L.J. 165, the learned Single Judge of this Court opined that Section 372 proviso does not, in any manner, affect the provisions of Section 378(4) of the .....

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..... s 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, we find that the view taken by the learned single judge in Shantaram s/o Laxman Tande (supra) is the correct view. The observation of the Apex Court in Mallikarjun Kodagali (supra) as set out by the learned referral Judge, is not in the context of the question under reference. The question before the Apex Court as well as before the Larger Bench of the Gujarat High Court in Bhauvuban Dineshbhai Makwana (supra) was if leave was required to be obtained if an appeal against an order of acquittal is preferred by the victim under the proviso to section 372 of the Code. The larger Bench of the Gujarat High held that if the victim also happens to be the complainant and the appeal is against acquittal, he/she is required to take leave as provided in Section 378 of the Code but if he/she is not the complainant, he is not required to apply for or obtain any leave. To this, the Apex .....

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