Case Note & Summary
The case involved a reference to a larger bench to resolve a conflict regarding the maintainability of an appeal against acquittal in a prosecution under Section 138 of the Negotiable Instruments Act, 1881. The applicant, Kushal Kawaduji Singanjude, had filed a private complaint against the respondent, Ramnarayan Durgaprasad Agrawal, for dishonour of cheque. The trial court acquitted the accused, and the complainant sought to appeal. The question was whether such an appeal lies under Section 378(4) of the Code of Criminal Procedure, 1973 (CrPC) or under the proviso to Section 372 CrPC. The learned Single Judge, relying on the Supreme Court's decision in Mallikarjun Kodagali (Dead) Represented through Legal Representatives vs. State of Karnataka & others, (2019) 2 SCC 752, held that the proviso to Section 372 CrPC does not create a distinction between a 'victim as a victim' and a 'victim as a complainant'. The court further held that Section 378(4) CrPC is the appropriate provision for appeals against acquittal in private complaint cases, while the proviso to Section 372 CrPC applies only to police cases where the State fails to appeal. The court answered the reference accordingly, clarifying that the appeal against acquittal in a Section 138 NI Act case lies under Section 378(4) CrPC.
Headnote
A) Criminal Procedure - Appeal against acquittal - Private complaint under Section 138 NI Act - Section 378(4) CrPC - The court held that an appeal against acquittal in a case instituted upon a private complaint under Section 138 of the Negotiable Instruments Act, 1881, lies under Section 378(4) of the Code of Criminal Procedure, 1973, and not under the proviso to Section 372 of the Code. The proviso to Section 372 applies only to police cases where the State fails to appeal, while Section 378(4) is the remedy for complainants in private complaint cases. (Paras 1-4)
Issue of Consideration
Whether appeal against acquittal in prosecution for offence under Section 138 of Negotiable Instruments Act, 1881, lies under Section 378(4) of Code of Criminal Procedure or under proviso to Section 372 of Code of Criminal Procedure
Final Decision
The court answered the reference by holding that an appeal against acquittal in a prosecution for offence under Section 138 of the Negotiable Instruments Act, 1881, lies under Section 378(4) of the Code of Criminal Procedure, 1973, and not under the proviso to Section 372 of the Code.
Law Points
- Appeal against acquittal in private complaint under Section 138 NI Act lies under Section 378(4) CrPC
- proviso to Section 372 CrPC applies only to police cases where State fails to appeal
Case Details
2019 LawText (BOM) (08) 184
Criminal Application (APPA) No. 201 of 2018
P.N. Deshmukh, Pushpa V. Ganediwala
Shri Palash K. Mohta for applicant, Shri Yash Maheshwari for respondent
Kushal Kawaduji Singanjude
Ramnarayan Durgaprasad Agrawal (Kejadiwal)
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Nature of Litigation
Reference to larger bench on maintainability of appeal against acquittal in a private complaint under Section 138 of Negotiable Instruments Act
Remedy Sought
Clarification on whether appeal lies under Section 378(4) CrPC or proviso to Section 372 CrPC
Filing Reason
Conflict of opinion regarding the appropriate provision for appeal against acquittal in a private complaint case under Section 138 NI Act
Previous Decisions
Single Bench referred the question to larger bench by order dated 30.10.2018
Issues
Whether appeal against acquittal in prosecution for offence under Section 138 of Negotiable Instruments Act, 1881, lies under Section 378(4) of Code of Criminal Procedure or under proviso to Section 372 of Code of Criminal Procedure
Submissions/Arguments
Counsel for applicant relied on Shantaram s/o Laxman Tande vs. Dipak s/o Madhav Gaikwad, 2011 ALL MR (Cri) 3473, which held that Section 378(4) CrPC and proviso to Section 372 CrPC operate in distinct areas, with Section 378(4) available to complainant in private complaint cases and proviso to Section 372 available to victim in police cases
Referral Judge relied on Mallikarjun Kodagali vs. State of Karnataka, (2019) 2 SCC 752, which held that proviso to Section 372 does not introduce distinction between 'victim as a victim' and 'victim as a complainant'
Ratio Decidendi
Section 378(4) CrPC provides remedy for appeal against acquittal in cases instituted upon private complaint, while proviso to Section 372 CrPC applies to police cases where State fails to appeal; no distinction between 'victim as a victim' and 'victim as a complainant' under proviso to Section 372.
Judgment Excerpts
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 ?
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.
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
Procedural History
The Single Bench of Bombay High Court, Nagpur Bench, by order dated 30.10.2018, referred the question of maintainability of appeal against acquittal in a Section 138 NI Act case to a larger bench. The larger bench (P.N. Deshmukh and Pushpa V. Ganediwala JJ.) heard the reference and pronounced judgment on 23.08.2019.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 372, 378(4)
