Case Note & Summary
The applicant, Madhav Shriramji Khadse, was the original accused in Summary Criminal Complaint No. 1288/2008 under Section 138 of the Negotiable Instruments Act, 1881, before the Judicial Magistrate First Class, Akola. The Magistrate acquitted the applicant by order dated 15-02-2010. The original complainant, Rajiv Ramrao Ghatol (non-applicant No.1), filed an appeal before the Sessions Court, Akola under the proviso to Section 372 of the Code of Criminal Procedure, 1973. The learned Additional Sessions Judge admitted the appeal on 06-04-2010 and issued notice to the applicant. Upon receipt of notice, the applicant appeared and filed an application dated 12-07-2010 seeking dismissal of the appeal on the ground that the complainant had not obtained leave to appeal as required under Section 378 CrPC. The learned Additional Sessions Judge rejected the application, holding that the appeal was filed under the proviso to Section 372 CrPC and the provisions of Section 378 CrPC were not applicable. The applicant then filed the present criminal application before the High Court challenging the rejection. The High Court examined the provisions of Section 372 CrPC, which states that no appeal lies from a judgment of acquittal passed by a Magistrate in a case instituted upon complaint, except as provided in Section 378 CrPC. However, the proviso to Section 372 CrPC, inserted by the Code of Criminal Procedure (Amendment) Act, 2008, creates an exception in favour of the complainant in cases where the accused is acquitted of an offence under Section 138 of the Negotiable Instruments Act, 1881. The court held that the proviso to Section 372 CrPC is a self-contained provision conferring a right of appeal on the complainant, and the requirement of leave under Section 378 CrPC does not apply to such appeals. The court reasoned that the proviso was specifically enacted to protect the interests of complainants in cheque dishonour cases, and requiring leave would defeat the legislative intent. The High Court dismissed the criminal application, upholding the order of the Additional Sessions Judge and confirming that the appeal was maintainable without leave.
Headnote
A) Criminal Procedure Code - Appeal against acquittal - Leave to appeal - Complainant's appeal under proviso to Section 372 CrPC against acquittal under Section 138 NI Act does not require leave under Section 378 CrPC - The proviso to Section 372 CrPC creates an independent right of appeal in favour of the complainant in cases where the accused is acquitted of an offence under Section 138 NI Act, and the provisions of Section 378 CrPC requiring leave are not attracted - Held that the Sessions Judge erred in rejecting the applicant's application for dismissal of appeal for want of leave (Paras 3-6).
Issue of Consideration
Whether the complainant in a complaint under Section 138 of the Negotiable Instruments Act, 1881 requires leave of the court to appeal against an order of acquittal under the proviso to Section 372 of the Code of Criminal Procedure, 1973.
Final Decision
The High Court dismissed the criminal application, holding that the appeal filed by the complainant under the proviso to Section 372 CrPC against the acquittal under Section 138 NI Act is maintainable without leave under Section 378 CrPC. The order of the Additional Sessions Judge rejecting the applicant's application for dismissal was upheld.
Law Points
- Appeal against acquittal under Section 138 NI Act by complainant under proviso to Section 372 CrPC does not require leave under Section 378 CrPC
- Complainant's right to appeal under proviso to Section 372 CrPC is independent of Section 378 CrPC
