Cheque Bounce: Complainant Can’t Challenge the Order of Acquittal Before Sessions Court- Calcutta HC
The Calcutta HC on Thursday ruled that A complainant in a case U/s 138 of the Negotiable Instrument Act is not a victim as defined U/s 2(wa) of Cr.P.C.
The bench of Justice Subhendu Samanta stated that “a complainant in a case arising out of private complaint, who has already provide the right of appeal U/s 378(4) of the Code, can not be permitted to take recourse to Section 372 of the Code.”
In this case, The opposite party initiated a petition of complaint U/s 138 of Negotiable Instrument Act against the petitioner before the Chief Judicial Magistrate. Subsequently, the case was transferred to the Court of Judicial Magistrate 5th Court of Barrackpore.
After the conclusion of the trial CJM found the petitioner to be not guilty for the offence punishable U/s 138 of NI Act and thereby acquitted the present petitioner under section 255(1) of the Code of Criminal Procedure.
The Additional Sessions Judge, set aside the order of acquittal passed by the Judicial Magistrate and found the petitioner to be guilty of the offence punishable U/s 138 of the Negotiable Instrument Act and convict the petitioner U/s 255(2) of Cr.P.C.
The issue for consideration before the bench was:
- Whether a complainant in a case U/s 138 of N.I Act is a victim as defined U/s -2(wa) of Cr.P.C.?
- If the complainant is a victim within the definition of Section– 2(wa) of Cr.P.C., is he entitled to file an appeal invoking the provision to Section – 372 of Cr.P.C. before the court to which an appeal lies against the conviction?
High Court observed that if a complainant of 138 of N.I Act comes under the purview of the definition of victim enumerated U/s 2(wa) of the Cr.P.C he must have a right to appeal before the Court of Sessions against the order of acquittal.
The bench noted that it is pointed out that if it is to be construed that a complainant could also file an appeal to the Sessions Court under Section 372 proviso or to the High Court under Section 378(4) of the Code, it would mean that a complainant in a complaint case would have two remedies and if he chooses the remedy under Section 372 proviso, he could file an appeal as of right to the Sessions Court without leave and if he files an appeal under Section 378(4) of the Code, special leave is required.
High Court opined that “the lawmakers would not have wanted to provide two remedies to a complainant in a complaint case. The amendment of the Code in 2009 was not with the intention of providing multiple remedies to a complainant. Lawmakers did not confer concurrent jurisdiction on the Sessions Court and the High Court to entertain an appeal by the complainant against acquittal in a complaint case. Thus, a complainant in a case U/s 138 of the Act of 1881 could not challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the Code and his only remedy is to file an appeal to the High Court with special leave under Section 378(4) of the Code.”
The bench stated that a complainant in a case U/s 138 of the Negotiable Instrument Act is not a victim as defined U/s 2(wa) of Cr.P.C.
High Court opined that a complainant in a case U/s 138 of NI Act is not entitled to file an appeal against acquittal according to the provision of Section 372 of Cr.P.C rather he may prefer an appeal before the High Court invoking the provision of Section 378(4) of the Cr.P.C.
In view of the above, the bench allowed the appeal.
Case Title: Ms. Todi Investors v. Ashis Kr. Dutta & Anr.
Bench: Justice Subhendu Samanta
Case No.: C.R.R. No. – 3587 of 2018
Counsel for the appellant: Mr. Prabhat Kumar Srivastawa
Counsel for the respondent: Mr. Subhamoy Patra
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