Can Cheque Bounce Victim File Appeal Before Sessions Court: Allahabad HC Refers Query To Larger Bench [Read Judgment]
It has also asked how to solve conflict between Section 372 proviso and Section 378(4) CrPC, when the victim and complainant are different persons
Where should be an appeal against acquittal in a cheque bounce case filed? Can the victim file it before the sessions court and the complainant file it before the high court? Can the victim file it before the high court without obtaining its leave? The Allahabad High Court has referred these interesting questions to a larger bench:
- Whether against acquittal order in a criminal complaint case under Section 138 Negotiable Instruments Act victim, who is complainant also, may prefer appeal before the sessions judge taking recourse to the proviso to Section 372 CrPC or the said appeal shall lie before the high court under the said provisions?
- Whether against the same judgment and order of acquittal in a complaint case, in a situation when victim and complainant both are different persons, victim may file appeal under the proviso to Section 372 CrPC before the sessions judge or such appeal shall lie before the high court?
Section 378(4) CrPC states that against an order of acquittal in any case instituted upon complaint, the complainant can, subject to grant of special leave to appeal, appeal to the high court. At the same time, proviso to Section 372 says the victim shall have a right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court. In a Section 138 NI Act case, the appeal against conviction lies before a sessions court, which implies that, if the complainant is a victim, Section 372 proviso gives him right to file an appeal before the sessions court.
Justice Om Prakash puts up this illustration to explain the conflict in these provisions: “If the victim and complainant both are different persons and the victim prefers to file appeal against the acquittal order before the Sessions Judge taking recourse to the provisio to Section 372 CrPC and complainant, being different person, files application for leave before the High Court for filing appeal under Section 378(4) CrPC against the same judgment and order, in that circumstance what would be the solution has not been offered. In other words, if leave is granted to the complainant by the high court to file appeal under Section 378(4) CrPC and the appeal is admitted and the criminal appeal preferred by the victim before the sessions judge is also admitted, there is every chance of conflict of opinion against the same judgment and order of acquittal.”
Disagreeing with the judgments by other single benches of the high court, Justice Om Prakash opined that victim in a complaint case against the acquittal order can prefer appeal only before the high court without any application to grant leave. Further, if the complainant, who is another person, moves application to grant leave and the said application is allowed and appeal is admitted by the high court, both the appeals may be decided by the same court to avoid any conflict of opinion, the court said.
Read the Judgment here.
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