Saturday 28 September 2024

Rajasthan HC: Complainant in Case Under S 138 of NI Act is victim, he can file appeal against acquittal before Sessions Court

This application for grant of leave to file appeal has been filed by complainant-Vikram Manshani against the judgment dated 12.02.2024 passed in Criminal Case No.3108/2016, where-underthe sole respondent has been acquitted of the charge under

Section 138 of the Negotiable Instruments Act.

It is not disputed that the cheque was issued in favour of the

applicant. Therefore, the applicant was victim of the crime as

defined under Section 2(y) of the Bharatiya Nagarik Suraksha

Sanhita, 2023 (BNSS), which reads as follows :

Section 2(y) “Victim” means a person who has

suffered any loss or injury caused by reason of

the act or omission of the accused person and

includes the guardian or legal heir of such

victim.”

If such complainant, is not a victim as defined above then,

he would be required to prefer leave application before the High

Court for preferring appeal against acquittal. However, if the

complainant is a victim of the crime, he/she shall have right

under Proviso to Section 413 BNSS to prefer appeal against

acquittal, conviction for a lesser offence or imposing inadequate

compensation.

The appellant would be at liberty to present an appeal against acquittal before concerned Sessions Judge within a period of 15 days from the date of this order.

 HIGH COURT OF JUDICATURE FOR RAJASTHAN

JODHPUR

S.B. Crml Leave To Appeal No. 384/2024

Vikram Manshani Vs Praveen Sharma

Coram:  MR. JUSTICE BIRENDRA KUMAR

Dated: 06/08/2024.

This application for grant of leave to file appeal has been

filed by complainant-Vikram Manshani against the judgment dated 12.02.2024 passed in Criminal Case No.3108/2016, where-underthe sole respondent has been acquitted of the charge under

Section 138 of the Negotiable Instruments Act.

It is not disputed that the cheque was issued in favour of the

applicant. Therefore, the applicant was victim of the crime as

defined under Section 2(y) of the Bharatiya Nagarik Suraksha

Sanhita, 2023 (BNSS), which reads as follows :

Section 2(y) “Victim” means a person who has

suffered any loss or injury caused by reason of

the act or omission of the accused person and

includes the guardian or legal heir of such

victim.”

Section 413 BNSS is corresponding provision of Section 372

Cr.P.C., wherein, proviso was inserted by amendment with effect

from 31.12.2009. The said provision under Section 413 BNSS

reads as follows :

“413. 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 his

Sanhita 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.

Evidently, the victim shall have right to prefer an appeal

before the appellate forum and for preferring appeal no leave is

needed. Therefore, the present appeal should have been filed

before the concerned District and Sessions Judge.

In Mallikarjun Kodagali Vs. State of Karnataka & Ors.,

reported in (2019) SCC 752 as well as Joseph Stephen &

Ors. Vs. Santhanasamy & Ors., reported in (2022) 13 SCC

115, the Hon’ble Supreme Court held that so far as the victim is

concerned, the victim has not to pray for grant of special leave to

appeal, as the victim has a statutory right of appeal under Section

372 proviso and the proviso to Section 372 does not stipulate any

condition of obtaining special leave to appeal like sub-Section (4)

of Section 378 Cr.P.C. in the case of a complainant and in a case

where an order of acquittal is passed in any case instituted upon

complaint.

Learned counsel for the applicant has referred to the

provisions of sub-Section 4 of Section 419 of the BNSS, which is

reproduction of Section 378(4) Cr.P.C. The said provision reads as

follows:

“378(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.”

Evidently, a leave to appeal is required by the complainant of

such cases, who is not a victim as defined above. The law is well settled that any person can set the criminal proceedings in

motion, if he has knowledge of commission of any cognizable

offences, such step may be taken by filing an F.I.R. with the police

or a complaint petition before a Magistrate.

If such complainant, is not a victim as defined above then,

he would be required to prefer leave application before the High

Court for preferring appeal against acquittal. However, if the

complainant is a victim of the crime, he/she shall have right

under Proviso to Section 413 BNSS to prefer appeal against

acquittal, conviction for a lesser offence or imposing inadequate

compensation.

The appellant would be at liberty to present an appeal

against acquittal before concerned Sessions Judge within a period

of 15 days from the date of this order. The learned Appellate Court

while considering the period of limitation shall consider that the

petitioner was bona-fidely prosecuting the same matter before

wrong forum (herein) from 08.07.2024 till today.

Accordingly, this leave to appeal stands disposed of.

(BIRENDRA KUMAR),J


Print Page

No comments:

Post a Comment