Case Note & Summary
The applicant, Ganesh Bandu Badgujar, was the original accused in a complaint filed by respondent no.1, Mangalabai Ashokbhai Patel, alleging an offence under Section 138 of the Negotiable Instruments Act, 1881. On 8-11-2010, the Judicial Magistrate (First Class), Jalgaon, acquitted the accused under Section 256 of the Code of Criminal Procedure, 1973 (CrPC) for non-appearance of the complainant. The complainant then filed an appeal before the Sessions Court, purportedly under the proviso to Section 372 CrPC, claiming to be a 'victim'. The Additional Sessions Judge allowed the appeal. Aggrieved, the accused filed a Criminal Revision Application in the High Court. The High Court examined the maintainability of the appeal. It noted that the proviso to Section 372 CrPC was inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009) with effect from 31-12-2009 to give a right of appeal to victims who otherwise had no such right. However, a complainant in a private complaint already has a right to appeal against acquittal under Section 378(4) CrPC, which lies to the High Court. Therefore, such a complainant cannot also invoke the proviso to Section 372 CrPC. The appeal before the Sessions Court was not maintainable, and the proceedings before it were a nullity. The High Court allowed the revision application, set aside the Sessions Court's order, and restored the Magistrate's order of acquittal.
Headnote
A) Criminal Procedure Code - Appeal by Complainant - Maintainability - Section 372 proviso, Section 378(4) CrPC - Complainant in a private complaint under Section 138 NI Act already has a right to appeal under Section 378(4) CrPC to the High Court - Such complainant cannot file an appeal under the proviso to Section 372 CrPC claiming to be a 'victim' - Appeal before Sessions Court not maintainable and proceedings nullity (Paras 3-4).
Issue of Consideration
Whether a complainant in a private complaint under Section 138 of the Negotiable Instruments Act, who has a right to appeal under Section 378(4) of the Code of Criminal Procedure, can also file an appeal under the proviso to Section 372 of the Code claiming to be a 'victim'.
Final Decision
The Criminal Revision Application is allowed. The order passed by the Additional Sessions Judge, Jalgaon, dated 30-11-2012 in Criminal Appeal No. 100 of 2012 is set aside. The order of acquittal passed by the Judicial Magistrate (First Class), Jalgaon, on 8-11-2010 in S.C.C. No. 100 of 2010 is restored.
Law Points
- Appeal by complainant under proviso to Section 372 CrPC not maintainable when complainant already has right to appeal under Section 378(4) CrPC
- Proceedings before Sessions Court nullity
Case Details
2013 LawText (BOM) (12) 30
Criminal Revision Application No. 100 of 2013
Vijay B. Patil, Sachin Risbud, M.M. Bhokarikar, P.N. Muley
Mangalabai Ashokbhai Patel, The State of Maharashtra
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Nature of Litigation
Criminal Revision Application against order of Additional Sessions Judge allowing appeal against acquittal under Section 138 of Negotiable Instruments Act.
Remedy Sought
The applicant (original accused) sought setting aside of the Sessions Court's order allowing the complainant's appeal and restoration of the Magistrate's order of acquittal.
Filing Reason
The complainant filed an appeal before the Sessions Court under the proviso to Section 372 CrPC claiming to be a victim, which the accused contended was not maintainable as the complainant already had a right to appeal under Section 378(4) CrPC.
Previous Decisions
The Judicial Magistrate (First Class), Jalgaon, acquitted the accused under Section 256 CrPC on 8-11-2010. The Additional Sessions Judge allowed the complainant's appeal against that acquittal.
Issues
Whether the appeal filed by the complainant before the Sessions Court under the proviso to Section 372 CrPC was maintainable when the complainant already had a right to appeal under Section 378(4) CrPC.
Submissions/Arguments
The applicant argued that the appeal before the Sessions Court was not maintainable because the complainant had a right to appeal under Section 378(4) CrPC and could not invoke the proviso to Section 372 CrPC.
The respondent no.1 (complainant) presumably argued that as a victim, she was entitled to appeal under the proviso to Section 372 CrPC.
Ratio Decidendi
A complainant in a private complaint who already has a right to appeal under Section 378(4) of the Code of Criminal Procedure cannot file an appeal under the proviso to Section 372 of the Code claiming to be a 'victim'. Such an appeal is not maintainable and the proceedings before the appellate court are a nullity.
Judgment Excerpts
Clearly, the appeal filed before the Court of Sessions was not at all maintainable.
The complainant in a private complaint, who already has a right to file an appeal under the provisions of Section 378(4) of the Code, cannot, by claiming to be a 'victim', file an appeal by virtue of the proviso to Section 372 of the Code.
The proceedings before the Court of Sessions were a nullity.
Procedural History
The Judicial Magistrate (First Class), Jalgaon, acquitted the accused under Section 256 CrPC on 8-11-2010. The complainant filed an appeal before the Sessions Court under the proviso to Section 372 CrPC, which was allowed by the Additional Sessions Judge on 30-11-2012. The accused then filed the present Criminal Revision Application in the High Court.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 256, 372, 378(4)
