Manoj Sharma v. State & Anr.

(4) Ifsuch an order ofacquittal ispassed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf grants special leave to appealfrom the order ofacquittal, the complainant maypresent such an appeal to the High Court" To substantiate the aforesaid stand, petitioner's counsel had relied y upon Apex Court's decision in Subhash Chand v. State (Delhi Admn.), (2013) 2 see 17 at page 29. The pertinent observations made in Subhash Chandra (supra) are as under: - "In view ofthe above, we conclude that a complainant canfile an applicationfor special leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file such appeal in the Sessions Court. In the instant case the complaint alleging offences punishable imder Sections 16(1) & (1-A) read with Section 7 of the PFA Act and the Rules isfiled by complainant Shri Jaiswal, Local Health Authority^ through Delhi Administration. The I appellant was acquitted by the Metropolitan Magistrate, Patiala House Courts, New Delhi. The complainant can challenge the order ofacquittal byfiling an application for special leave to appeal in the Delhi High Court and not in the Sessions Court. Therefore, the impugned order [Criminal Misc. Case No. 427 of2009, decided on 7-1-2011 (Del)] holding that this case is not governed by Section 378(4) of the Code is quashed and set aside. In the circumstances the appeal is allowed." Crl.Rev.Ps. No. 149/13 & 138-145/2013 Page 5 2013:DHC:8483 In the light of stand taken as aforesaid, setting aside of impugned judgment is sought by learned counsel for petitioner in these petitions. Learned counsel for respondent-Complainant to defend the impugned judgment had drawn the attention of this Court to the Proviso to Section 372 of Code ofCriminal Procedure, 1973 inserted by the amendment Act of 2009 w.e.f 31®' December, 2009, whichreads as under: - "372.No appeals to lie unless othenviseprovided.xxxxxxxxxx [Provided that the victim shall have a right to prefer an appeal against any orderpassed by the Court acquitting the accused or convictingfor a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order ofconviction ofsuch Court.]" Upon hearing both the sides and on perusal of the impugned judgment and the decisions cited, I find that while applying the ratio of Apex Court's decision in Subhash Chandra (supra), it has to be concluded that appeal against acquittal by the trial court in criminal complaint under Section 138 of The Negotiable Instruments Act, 1881 lies to this Court in view of specific provision in the Code of Criminal Procedure. Sub-section 4 of Section 378 of Code of Criminal Procedure can be refen-ed to with advantage. Since it is found that the appeal preferred by respondent- Complainant before the sessions court against acquittal of petitioner in criminal complaint under Section 138 of The Negotiable Instruments Act, 1881 was not maintainable, therefore, impugned judgment of 24"^ January, 2013 in these petitions is rendered unsustainable and is Crl.Rev.Ps. No.149/13& 138-145/2013 Page 6 2013:DHC:8483 n.accordingly set aside. However, libeity is granted to respondentcomplainant to prefer an appeal to this Court against acquittal of petitioner vide trial court judgment to 8"' October, 2012 in the complaint case for the offence under Section 138 of The Negotiable Instruments Act, 1881 alongwith an application seeking contention of delay. Needless to say, the time spent by respondent-complainant in pursuing his remedy before wrong forum would be an aspect which would be considered if respondent-complainant chooses to challenge petitioner's acquittal by trial court within a period of two weeks' from today. These nine petitions are accordingly disposed of. ^ An h,--, Crl.Rev.Ps. No.149/13 & 138-145/2013 (SUNIL GAUR) Judge AUGUST 19, 2013 s Page 7