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Judgment
N. Ananda, J.—The short point for consideration is, whether appeal can be maintained against the judgment of acquittal for an offence punishable under Section 138 of Negotiable Instruments Act before the jurisdictional Sessions Court under proviso to Section 372 of Cr.P.C.
I have heard the learned counsel for parties.
In my considered opinion, the afore-stated point is no more res-integra, in view of the judgment of the Supreme Court reported in Damodar S. Prabhu Vs. Sayed Babalal H., , wherein the Supreme Court has held;
"20. It may be noted here that Section 143 of the Act makes an offence under Section 138 triable by a Judicial Magistrate, First Class (JMFC). After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal.
In the case of conviction, an appeal would lie to the Court of Sessions under Section 374(3)(a) Cr.P.C.; thereafter a revision to the High Court under Sections 397/401 Cr.P.C. and finally a petition before the Supreme Court, seeking special leave to appeal under Section 136 of the Constitution of India. Thus, in case of conviction there will be four levels of litigation.
In the case of acquittal by JMFC, the complainant could appeal to the High Court under Section 378(4) Cr.P.C. and thereafter for special leave to appeal to the Supreme Court under Article 136. In such an instance, therefore, there will be three levels of proceedings".
The learned counsel for respondent-complainant has relied on the following decisions to contend that the complainant and victim defined under Section 2(wa) of Cr.P.C. stand on the same footing and the complainant can maintain appeal under proviso to Section 372 Cr.P.C.
Sree Gokulam Chit and Finance Co. (P) Ltd. and Another Vs. T. Krishnakumar and Others,
Gulab Singh Vs. Ashok Kumar,
Porwal Trading Corporation (M/s) Vs. M/s. Global Syntex (B.H.L.) Ltd. and Another,
Sri Prakash Gandhi Vs. Sri T.G. Veeraprasad and Others,
Acquittal Appeal (DB) No. 04/2013 passed on 15-04-2013 in Mahesh Kumar Sinha v. The State of Jharkhand
Petta Satya Govinda Ramachandra Rao @ Babji Vs. Yarlagadda Vijaya Kumar and Another, ."
In my considered opinion, a person presenting the complaint under Section 142 of N.I. Act, cannot be termed as a Victim'' defined under Section 2(wa) Cr.P.C. The proviso to Section 142 of N.I. Act reads thus:--
"142. Cognizance of offences - Notwithstanding. anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)-
(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;
(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138:
[Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period]."
Therefore, the word "complainant" under Proviso to Section 142 of N.I. Act and "the victim" under Section 2(wa) of Cr.P.C. are not one and the same. In view of this, I am of the considered opinion that appeal filed under Proviso to Section 372 of Cr.P.C., is not maintainable.
The petition is accepted. The impugned order is set aside. The complainant is at liberty to file an appeal in the light of observations made herein and in accordance with law. If there were to be delay in filing the appeal, the complainant, can invoke appropriate provisions of the Limitation Act.