The Madras High Court has held that the appeal against acquittal of the accused in a cheque bounce case can be filed only before the High Court under Section 378(4) of Cr.PC.
A full bench of the High Court comprising Justices MM Sundresh, V Bharathidasan and N. Anand Venkatesh held that the decision of another full bench in S.Ganapathy V. N.Senthilvel ((2016) 4 CTC 119) is 'per incuriam'. The bench observed:
"As against an order of acquittal passed by a Magistrate on a complaint, an appeal will lie only before the High Court, under Section 378 (4) of Cr.PC. In such cases, the complainant has to seek for Special leave under Section 378 (5) of Cr.PC. The decision rendered in S.Ganapathi case is declared as a judgement per-incuriam, since it has been decided without reference to the binding authority in Damodar S.Prabhu and Subash Chand."
It was held in S. Ganapathy that the appeal by the complainant against an order of acquittal is maintainable before the Court of Sessions invoking the proviso to Section 372 of the Criminal Procedure Code. Doubting the correctness of this view, a single bench had referred to the larger bench the issue whether the remedy lies as against an order of acquittal passed by a Magistrate on a complaint whether it is under proviso to Section 372 of the Criminal Procedure Code or under Section 378(4) of Criminal Procedure Code?
The bench referred to the Supreme Court judgments in Damodar S. Prabhu V. Sayed Babalal H. ((2010) 5 Supreme Court Cases 663) [Subash Chand Vs. State (Delhi Administration)] 2013 2 SCC 17 and Mallikarjun Kodagali (Dead) Represented through Legal Representatives V. State of Karnataka ((2019) 2 Supreme Court Cases 752) and observed that the decision rendered in S.Ganapathi case is per-incuriam.
The bench also clarified the impact of this decision on the cases decided by the Courts of Session during the interregnum? (Pursuant to the decision of the Full Bench in S.Ganapathy's case, the Registry transferred all the pending appeals to the Courts of Sessions)
Justice Anand Venkatesh wrote a concurring judgment and noted that 13 High Courts have held that a complainant can file an Appeal against acquittal only before the High Court under Section 378 (4) of Cr.PC.
Case name: K.Rajalingam Vs. R.SuganthalakshmiCase no.: Criminal Appeal Nos.89 & 90 of 2020Coram: Justices MM Sundresh, V Bharathidasan and N. Anand Venkatesh