“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 ?”
Answer : 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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APPA) NO. 201 OF 2018.
Kushal Kawaduji Singanjude Vs Ramnarayan Durgaprasad Agrawal (Kejadiwal),
CORAM : P.N. DESHMUKH &
PUSHPA V. GANEDIWALA JJ.
DATED : AUGUST 23, 2019.
(PER PUSHPA V. GANEDIWALA, J.)
Citation: 2020(1) MHLJ 748
This Bench has been constituted by the directions of
Hon'ble the Chief Justice to decide the undermentioned
question which has been referred for consideration by the
Single Bench of this Court by an order dated 30.10.2018. The
question reads thus:
“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 ?”
2. The occasion to refer the aforesaid question for
consideration arose when there was an issue before the Court
about maintainability of an appeal under Section 378(4) of the
Code of Criminal Procedure, 1973 (for short 'Code') in a case
initiated on a private complaint u/s 138 of the Negotiable
Instruments Act, 1881 (for short 'Act of 1881'). The learned
counsel Shri P.K. Mohta for the appellant referred judgment of
this Court in the case of Shantaram s/o Laxman Tande vs. Dipak
s/o Madhav Gaikwad , reported at 2011 ALL MR (Cri) 3473 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 Kodagali
(Dead) Represented through Legal Representatives vs. State of
Karnataka & others, reported at (2019) 2 SCC 752, wherein
their Lordships have taken a view that in the case of Bhauvuban
Dineshbhai Makwana vs. State of Gujarat & Ors., 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 vs. Dipak s/o Madhav Gaikwad,
(supra) requires reconsideration in view of the opinion
expressed by the Hon'ble Apex Court in the judgment of
Mallikarjun Kodagali (Dead) Represented through Legal
Representatives vs. State of Karnataka & others, (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 after obtaining Special
Leave under Section 378(4) of the Code.
7. Per contra, learned counsel Shri Maheshwari
questioned the maintainability of such appeals against acquittal
before the High Court in cases instituted upon private
complaints filed under Section 138 of the Act of 1881. Learned
counsel also referred relevant statutory provisions and citations
in support of his argument.
8. In the background of above facts, relevant
provisions of the Code of Criminal Procedure, necessary to
decide the reference, are reproduced hereunder :
“S. 372. No
appeal to lie unless otherwise
provided – No appeal shall lie from any
judgment or order of a Criminal Court except as
provided for by this Code or by any other law for
the time being in force:
Provided that the victim shall have a
right to prefer an appeal against any order
passed by the Court acquitting the accused or
convicting for a lesser offence or imposing
inadequate compensation, and such appeal shall
lie to the Court to which an appeal ordinarily
lies against the order of conviction of such
Court.
S. 378 Appeal
in case of acquittal (
1) Save
as otherwise provided in SubSection
(2) and
subject to the provisions of SubSections
(3) and
(5), (
a) the District Magistrate may, in any case,
direct the Public Prosecutor to present an appeal
to the Court of Session from an order of
acquittal passed by a Magistrate in respect of a
cognizable and nonbailable
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 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
subsection
(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 nonbailable
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 subsection
(1) or subsection
(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 subsection
(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 subsection
(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 subsection
(1) or under subsection
(2).
2(d). “complaint” means any allegation
made orally or in writing to a Magistrate, with
a view to his taking action under this Code, that
some person, whether known or unknown, has
committed an offence, but does not include a
police report.”
2(wa). “victim” means a person who has
suffered any loss or injury caused by reason of
the act or omission for which the accused person
has been charged and the expression “victim”
includes his or her guardian or legal heir;”
9. While adverting to decide the question under
reference, it is apposite to consider the object of introducing
Section 138 in the Act of 1881 vide Amendment Act 66 of
1998. The new Chapter XVII consisting of Sections 138 to 142 was
added in the Act of 1881, specifically to enhance the acceptability of
cheques in settlement of liabilities by making the drawer liable
for penalties in case of bouncing of cheques due to insufficiency
of funds in the accounts or for the reason that it exceeds the
arrangement made by the drawer. Section 138 of the Act of
1881 is applicable only in case the cheque is presented for
payment within a period of six months from the date on which
it is drawn or within the period of its validity whichever is
earlier. The other conditions to constitute the offence are :
I) the payee should have made a demand
for payment by registered notice after the
cheque is returned unpaid; and
II) the drawer should have failed to pay the
amount demanded within 15 days of the
receipt of notice.
10. Section 139 of the Act of 1881 casts a rebuttable
presumption that a 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 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, compoundable and noncognizable.
The
proceedings can be instituted only by filing a complaint case
under Section 200 before the Court of a Competent jurisdiction.
No court is competent to take cognizance of the said offence
except upon a complaint in writing made by the payee or
holder in due course of the cheque. Police has no role to
regulate the proceedings. Mens rea is not an essential
ingredient for commission of offence under this Act.
14. Section 2(wa) and proviso to Section 372 have been
added in the Code with effect from 31.12.2009. The purpose
and object of the amendment was to provide relief to the
'victims' of offence who hitherto had practically no role to play
in the criminal proceedings and who were to remain as mute
spectators and was not at all to cover a situation where the
complainant in a private complaint under Section 138 of the
Act of 1881, who already had a remedy by way of appeal for
redressal of his/ her grievance. As such, the “complainant” as
referred in Section 138 of the Act of 1881 proceedings cannot
be treated at par with 'victim' of a crime for whose benefit
amendments have been brought into existence. It is a kind of
privilege conferred upon a victim to vent his/ her grievance by
preferring an appeal on limited grounds enumerated in the
proviso to Section 372 of the Code. It is a separate and
statutory right and is not dependent either upon or is
subservient of the right of appeal of the State. The purpose of
introduction of Section 372 in the 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 subclause
(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 142A
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 143A
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 nonobstante
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 worthy to mention that peculiarity of the
offence under Section 138 of the Act of 1881, is that this
offence has been created by way of legal fiction. The
wordings employed in the said provision reads thus '…..... such
person shall be deemed to have committed an offence.......'. In
interpreting a provision creating a legal fiction, it is well settled
that the court is to ascertain for what purpose the fiction is
created, and after ascertaining this, the Court is to assume all
those facts and consequences which are incidental or inevitable
corollaries for giving effect to the fiction. But in so construing
the fiction it is not to be extended beyond the purpose of which
it is created, or beyond the language of the section by which it
is created.
19. In the case of Rajkumar Khurana Vs. State of (NCT
of Delhi) reported at (2009) 6 SCC 72, it is held that Legal
fiction cannot be taken recourse to for any purpose other than
one mentioned in the statute. A penal provision created by a
legal fiction must receive strict construction.
20. Looking to the object and purpose for introducing
Section 138 and allied provisions in the Act of 1881, the
offence of dishonour of cheque cannot be viewed with the same
lenses at par with the penal provisions involving mens rea.
Generally, crime is treated as a wrong against the society. It is
a public wrong. State has to play a major role even though the
prime sufferer is the victim of the crime. However, the same is
not a position with the offence 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. 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 this view of the matter, 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.
24. Furthermore, it was certainly not the object of the
legislature to confer concurrent jurisdiction to the High Court
under Section 378(4) and to the Sessions Court under proviso
to Section 372 of the Code to hear appeals against the order of
acquittal in section 138 of the Act of 1881 cases. In addition to
the remedy under Criminal law, as stated earlier, the payee or
the holder in due course has an additional remedy under Civil
law. Both can be invoked simultaneously.
25. As per the settled legal principles, the rules of
interpretation require that the provisions in any enactment are
to be read in conformity with each other and not in derogation
to each other. In order to give effect to one provision, the other
provision shall not get nullified. The special provision always
prevails over the general provision as rightly submitted by
learned counsel for the appellant while relying on the case of
Motiram Gheelabhai through LR Vs. Jagan Nagar, reported at
(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 vs. State (Delhi
Administration) reported at (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 nonbailable,
cognizable or noncognizable,
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 & Ors. Vs.
State of Maharashtra & Ors. reported at 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 his complaint came to be
rejected by an acquittal of the accused. Upon
such complaint, filing the appeal under Section
378(4) would then require special leave from
the High Court to appeal. That would be the
leave granted to that complainant which would
give the complainant a second opportunity to
prosecute his case.
50. It would be, therefore, too myopic a view to
say that the private complainant could be placed
on par with the first informant. These
complainants come from wholly different
worlds. They set the wheels of (22) Cr. Appeals
991, 992, 331 & 854/11 justice moving in
wholly different spheres. Whereas one stands on
his own feet and is in control of his proceeding,
the other is left to the vagaries of the
investigating agency and the prosecuting agency.
There is nothing he/she can do in the
investigation; there is little he/she can do in a
prosecution. The only place he/she could be
heard is in the appeal so far.
57. The question whether a private complainant
would take recourse to the provision to Section
372 is not threatening. A complainant in a
private complaint, even if he/she has been the
victim of the offence, would not fall under the
said proviso as a victim since the appeal to be
filed by him has been separately contemplated
under the specific provision being Section
378(4). Hence though describing him as a
victim, which inclusive definition came to be
incorporated in the Criminal Procedure Code
only alongside the incorporation of the proviso
to Section 372, it would apply 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 Vs. Smt. S.P.
Sravana & Anr., 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 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 Vs. 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 M/s. Top Notch Infotronix (I) Pvt. Ltd.
Vs. M/s. Infosoft Systems, reported at 2011 (6) Mh. L.J., 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 Code which deals with an appeal against
the order of acquittal in a case instituted upon a complaint.
It was held that against acquittal in a case instituted by a
complainant under Section 138 of the Act of 1881, an appeal
would only lie to the High Court under Section 378(4).
32. Moreover, prior to the Amendment Act 25 of 2005,
all appeals against acquittal used to lie before the High Court.
Act of 25 of 2005 brought changes to Section 378(1) of the
Code to the effect that all appeals against the order of acquittal
passed by the Court of Magistrate in case of cognizable and
nonbailable
offence shall lie to the Court of Sessions where
appeals against the order of conviction lie. The purpose of the
said amendment is stated to be to guard against arbitrary
exercise of power and to reduce reckless acquittals. However,
while amending Section 378(1) of the Code, Section 378(4)
has been kept intact which shows legislature's intention not to
disturb the said provision. Prior to Amendment of 2005, there
used to be only one remedy against an order of acquittal passed
by the Magistrates in cases initiated on police reports i.e. appeal
before the High Court. The reason might be based on the
principle that the acquittal of the accused by the court
reinforces the principle of innocence of the accused. Even the
Amendment of 2005 did not touch less serious offences. For
bailable and noncognizable
offences, the Appeals against the
order of acquittals still lie to the High Court. The appeal
against 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 Vs. N. Senthilvel , reported at 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, we find that the
view taken by the learned single judge in Shantaram s/o
Laxman Tande vs. Dipak s/o Madhav Gaikwad (supra) is the
correct view. The observation of the Apex Court in Mallikarjun
Kodagali (Dead) Represented through Legal Representatives vs.
State of Karnataka & others, (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 vs. State of Gujarat & Ors., (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 Court observed that Gujarat High Court made
an artificial and unnecessary distinction between a “victim as a
victim” and “victim as a complainant” in respect of filing an
appeal against an order of acquittal. This observation of the
Apex Court, in our opinion, does not go against the view
expressed by the single judge of this court in Shantaram s/o
Laxman Tande vs. Dipak s/o Madhav Gaikwad (supra). The
learned Single Judge opined that Section 378(4) of the Code is
the exclusive provision which deals with the orders of acquittal
passed in any cases instituted upon complaint and hence, the
provision of Section 378(4) and amended proviso to Section
372 of the Code operate in two different areas separately.
36. In fact the Apex Court in the concluding para in the
case of Mallikarjun Kodagali (Dead) (supra) held that the text
of Section 378(4) of the Code is quite clear and it is confined to
an order of acquittal passed in a case instituted upon a
complaint and this has nothing to do with the lodging or
registration of an FIR, and, therefore, it is not at all necessary to
consider the effect of a victim being the complainant as far as
the proviso to Section 372 of the Code is concerned. The
concluding para 78 in the said judgment reads thus
“78. …......The language of the proviso to
Section 372 of the Cr.P.C. is quite clear,
particularly when it is contrasted with the
language of Section 378(4) of the Cr.P.C. The
text of this provision is quite clear and it is
confined to an order of acquittal passed in a case
instituted upon a complaint. The word
‘complaint’ has been defined in Section 2(d) of
the Cr.P.C. and refers to any allegation made
orally or in writing to a Magistrate. This has
nothing to do with the lodging or the
registration of an FIR, and therefore it is not at
all necessary to consider the effect of a victim
being the complainant as far as the proviso to
Section 372 of the Cr.P.C. is concerned.”
37. In the conspectus of the aforesaid discussion, we
answer the question thus :
Answer : 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.
Before parting with the judgment, we place on
record our appreciation for Advocate Shri Palash K. Mohta, for
the applicant and Advocate Shri Yash Maheshwari, for the
respondent, who have ably assisted the Bench in answering this
reference.
Order accordingly.
Print Page
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 ?”
Answer : 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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (APPA) NO. 201 OF 2018.
Kushal Kawaduji Singanjude Vs Ramnarayan Durgaprasad Agrawal (Kejadiwal),
CORAM : P.N. DESHMUKH &
PUSHPA V. GANEDIWALA JJ.
DATED : AUGUST 23, 2019.
(PER PUSHPA V. GANEDIWALA, J.)
Citation: 2020(1) MHLJ 748
This Bench has been constituted by the directions of
Hon'ble the Chief Justice to decide the undermentioned
question which has been referred for consideration by the
Single Bench of this Court by an order dated 30.10.2018. The
question reads thus:
“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 ?”
2. The occasion to refer the aforesaid question for
consideration arose when there was an issue before the Court
about maintainability of an appeal under Section 378(4) of the
Code of Criminal Procedure, 1973 (for short 'Code') in a case
initiated on a private complaint u/s 138 of the Negotiable
Instruments Act, 1881 (for short 'Act of 1881'). The learned
counsel Shri P.K. Mohta for the appellant referred judgment of
this Court in the case of Shantaram s/o Laxman Tande vs. Dipak
s/o Madhav Gaikwad , reported at 2011 ALL MR (Cri) 3473 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 Kodagali
(Dead) Represented through Legal Representatives vs. State of
Karnataka & others, reported at (2019) 2 SCC 752, wherein
their Lordships have taken a view that in the case of Bhauvuban
Dineshbhai Makwana vs. State of Gujarat & Ors., 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 vs. Dipak s/o Madhav Gaikwad,
(supra) requires reconsideration in view of the opinion
expressed by the Hon'ble Apex Court in the judgment of
Mallikarjun Kodagali (Dead) Represented through Legal
Representatives vs. State of Karnataka & others, (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 after obtaining Special
Leave under Section 378(4) of the Code.
7. Per contra, learned counsel Shri Maheshwari
questioned the maintainability of such appeals against acquittal
before the High Court in cases instituted upon private
complaints filed under Section 138 of the Act of 1881. Learned
counsel also referred relevant statutory provisions and citations
in support of his argument.
8. In the background of above facts, relevant
provisions of the Code of Criminal Procedure, necessary to
decide the reference, are reproduced hereunder :
“S. 372. No
appeal to lie unless otherwise
provided – No appeal shall lie from any
judgment or order of a Criminal Court except as
provided for by this Code or by any other law for
the time being in force:
Provided that the victim shall have a
right to prefer an appeal against any order
passed by the Court acquitting the accused or
convicting for a lesser offence or imposing
inadequate compensation, and such appeal shall
lie to the Court to which an appeal ordinarily
lies against the order of conviction of such
Court.
S. 378 Appeal
in case of acquittal (
1) Save
as otherwise provided in SubSection
(2) and
subject to the provisions of SubSections
(3) and
(5), (
a) the District Magistrate may, in any case,
direct the Public Prosecutor to present an appeal
to the Court of Session from an order of
acquittal passed by a Magistrate in respect of a
cognizable and nonbailable
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 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
subsection
(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 nonbailable
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 subsection
(1) or subsection
(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 subsection
(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 subsection
(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 subsection
(1) or under subsection
(2).
2(d). “complaint” means any allegation
made orally or in writing to a Magistrate, with
a view to his taking action under this Code, that
some person, whether known or unknown, has
committed an offence, but does not include a
police report.”
2(wa). “victim” means a person who has
suffered any loss or injury caused by reason of
the act or omission for which the accused person
has been charged and the expression “victim”
includes his or her guardian or legal heir;”
9. While adverting to decide the question under
reference, it is apposite to consider the object of introducing
Section 138 in the Act of 1881 vide Amendment Act 66 of
1998. The new Chapter XVII consisting of Sections 138 to 142 was
added in the Act of 1881, specifically to enhance the acceptability of
cheques in settlement of liabilities by making the drawer liable
for penalties in case of bouncing of cheques due to insufficiency
of funds in the accounts or for the reason that it exceeds the
arrangement made by the drawer. Section 138 of the Act of
1881 is applicable only in case the cheque is presented for
payment within a period of six months from the date on which
it is drawn or within the period of its validity whichever is
earlier. The other conditions to constitute the offence are :
I) the payee should have made a demand
for payment by registered notice after the
cheque is returned unpaid; and
II) the drawer should have failed to pay the
amount demanded within 15 days of the
receipt of notice.
10. Section 139 of the Act of 1881 casts a rebuttable
presumption that a 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 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, compoundable and noncognizable.
The
proceedings can be instituted only by filing a complaint case
under Section 200 before the Court of a Competent jurisdiction.
No court is competent to take cognizance of the said offence
except upon a complaint in writing made by the payee or
holder in due course of the cheque. Police has no role to
regulate the proceedings. Mens rea is not an essential
ingredient for commission of offence under this Act.
14. Section 2(wa) and proviso to Section 372 have been
added in the Code with effect from 31.12.2009. The purpose
and object of the amendment was to provide relief to the
'victims' of offence who hitherto had practically no role to play
in the criminal proceedings and who were to remain as mute
spectators and was not at all to cover a situation where the
complainant in a private complaint under Section 138 of the
Act of 1881, who already had a remedy by way of appeal for
redressal of his/ her grievance. As such, the “complainant” as
referred in Section 138 of the Act of 1881 proceedings cannot
be treated at par with 'victim' of a crime for whose benefit
amendments have been brought into existence. It is a kind of
privilege conferred upon a victim to vent his/ her grievance by
preferring an appeal on limited grounds enumerated in the
proviso to Section 372 of the Code. It is a separate and
statutory right and is not dependent either upon or is
subservient of the right of appeal of the State. The purpose of
introduction of Section 372 in the 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 subclause
(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 142A
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 143A
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 nonobstante
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 worthy to mention that peculiarity of the
offence under Section 138 of the Act of 1881, is that this
offence has been created by way of legal fiction. The
wordings employed in the said provision reads thus '…..... such
person shall be deemed to have committed an offence.......'. In
interpreting a provision creating a legal fiction, it is well settled
that the court is to ascertain for what purpose the fiction is
created, and after ascertaining this, the Court is to assume all
those facts and consequences which are incidental or inevitable
corollaries for giving effect to the fiction. But in so construing
the fiction it is not to be extended beyond the purpose of which
it is created, or beyond the language of the section by which it
is created.
19. In the case of Rajkumar Khurana Vs. State of (NCT
of Delhi) reported at (2009) 6 SCC 72, it is held that Legal
fiction cannot be taken recourse to for any purpose other than
one mentioned in the statute. A penal provision created by a
legal fiction must receive strict construction.
20. Looking to the object and purpose for introducing
Section 138 and allied provisions in the Act of 1881, the
offence of dishonour of cheque cannot be viewed with the same
lenses at par with the penal provisions involving mens rea.
Generally, crime is treated as a wrong against the society. It is
a public wrong. State has to play a major role even though the
prime sufferer is the victim of the crime. However, the same is
not a position with the offence 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. 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 this view of the matter, 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.
24. Furthermore, it was certainly not the object of the
legislature to confer concurrent jurisdiction to the High Court
under Section 378(4) and to the Sessions Court under proviso
to Section 372 of the Code to hear appeals against the order of
acquittal in section 138 of the Act of 1881 cases. In addition to
the remedy under Criminal law, as stated earlier, the payee or
the holder in due course has an additional remedy under Civil
law. Both can be invoked simultaneously.
25. As per the settled legal principles, the rules of
interpretation require that the provisions in any enactment are
to be read in conformity with each other and not in derogation
to each other. In order to give effect to one provision, the other
provision shall not get nullified. The special provision always
prevails over the general provision as rightly submitted by
learned counsel for the appellant while relying on the case of
Motiram Gheelabhai through LR Vs. Jagan Nagar, reported at
(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 vs. State (Delhi
Administration) reported at (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 nonbailable,
cognizable or noncognizable,
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 & Ors. Vs.
State of Maharashtra & Ors. reported at 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 his complaint came to be
rejected by an acquittal of the accused. Upon
such complaint, filing the appeal under Section
378(4) would then require special leave from
the High Court to appeal. That would be the
leave granted to that complainant which would
give the complainant a second opportunity to
prosecute his case.
50. It would be, therefore, too myopic a view to
say that the private complainant could be placed
on par with the first informant. These
complainants come from wholly different
worlds. They set the wheels of (22) Cr. Appeals
991, 992, 331 & 854/11 justice moving in
wholly different spheres. Whereas one stands on
his own feet and is in control of his proceeding,
the other is left to the vagaries of the
investigating agency and the prosecuting agency.
There is nothing he/she can do in the
investigation; there is little he/she can do in a
prosecution. The only place he/she could be
heard is in the appeal so far.
57. The question whether a private complainant
would take recourse to the provision to Section
372 is not threatening. A complainant in a
private complaint, even if he/she has been the
victim of the offence, would not fall under the
said proviso as a victim since the appeal to be
filed by him has been separately contemplated
under the specific provision being Section
378(4). Hence though describing him as a
victim, which inclusive definition came to be
incorporated in the Criminal Procedure Code
only alongside the incorporation of the proviso
to Section 372, it would apply 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 Vs. Smt. S.P.
Sravana & Anr., 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 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 Vs. 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 M/s. Top Notch Infotronix (I) Pvt. Ltd.
Vs. M/s. Infosoft Systems, reported at 2011 (6) Mh. L.J., 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 Code which deals with an appeal against
the order of acquittal in a case instituted upon a complaint.
It was held that against acquittal in a case instituted by a
complainant under Section 138 of the Act of 1881, an appeal
would only lie to the High Court under Section 378(4).
32. Moreover, prior to the Amendment Act 25 of 2005,
all appeals against acquittal used to lie before the High Court.
Act of 25 of 2005 brought changes to Section 378(1) of the
Code to the effect that all appeals against the order of acquittal
passed by the Court of Magistrate in case of cognizable and
nonbailable
offence shall lie to the Court of Sessions where
appeals against the order of conviction lie. The purpose of the
said amendment is stated to be to guard against arbitrary
exercise of power and to reduce reckless acquittals. However,
while amending Section 378(1) of the Code, Section 378(4)
has been kept intact which shows legislature's intention not to
disturb the said provision. Prior to Amendment of 2005, there
used to be only one remedy against an order of acquittal passed
by the Magistrates in cases initiated on police reports i.e. appeal
before the High Court. The reason might be based on the
principle that the acquittal of the accused by the court
reinforces the principle of innocence of the accused. Even the
Amendment of 2005 did not touch less serious offences. For
bailable and noncognizable
offences, the Appeals against the
order of acquittals still lie to the High Court. The appeal
against 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 Vs. N. Senthilvel , reported at 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, we find that the
view taken by the learned single judge in Shantaram s/o
Laxman Tande vs. Dipak s/o Madhav Gaikwad (supra) is the
correct view. The observation of the Apex Court in Mallikarjun
Kodagali (Dead) Represented through Legal Representatives vs.
State of Karnataka & others, (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 vs. State of Gujarat & Ors., (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 Court observed that Gujarat High Court made
an artificial and unnecessary distinction between a “victim as a
victim” and “victim as a complainant” in respect of filing an
appeal against an order of acquittal. This observation of the
Apex Court, in our opinion, does not go against the view
expressed by the single judge of this court in Shantaram s/o
Laxman Tande vs. Dipak s/o Madhav Gaikwad (supra). The
learned Single Judge opined that Section 378(4) of the Code is
the exclusive provision which deals with the orders of acquittal
passed in any cases instituted upon complaint and hence, the
provision of Section 378(4) and amended proviso to Section
372 of the Code operate in two different areas separately.
36. In fact the Apex Court in the concluding para in the
case of Mallikarjun Kodagali (Dead) (supra) held that the text
of Section 378(4) of the Code is quite clear and it is confined to
an order of acquittal passed in a case instituted upon a
complaint and this has nothing to do with the lodging or
registration of an FIR, and, therefore, it is not at all necessary to
consider the effect of a victim being the complainant as far as
the proviso to Section 372 of the Code is concerned. The
concluding para 78 in the said judgment reads thus
“78. …......The language of the proviso to
Section 372 of the Cr.P.C. is quite clear,
particularly when it is contrasted with the
language of Section 378(4) of the Cr.P.C. The
text of this provision is quite clear and it is
confined to an order of acquittal passed in a case
instituted upon a complaint. The word
‘complaint’ has been defined in Section 2(d) of
the Cr.P.C. and refers to any allegation made
orally or in writing to a Magistrate. This has
nothing to do with the lodging or the
registration of an FIR, and therefore it is not at
all necessary to consider the effect of a victim
being the complainant as far as the proviso to
Section 372 of the Cr.P.C. is concerned.”
37. In the conspectus of the aforesaid discussion, we
answer the question thus :
Answer : 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.
Before parting with the judgment, we place on
record our appreciation for Advocate Shri Palash K. Mohta, for
the applicant and Advocate Shri Yash Maheshwari, for the
respondent, who have ably assisted the Bench in answering this
reference.
Order accordingly.
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