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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Criminal Application (APPA) No.708/2010
( M/s. Top Notch Infotronix (I) Pvt. Ltd., through one of its duly authorized Officer
..Vs..
M/s. Infosoft Systems & others )
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. Amit Khare, Adv. for applicant/appellant.
Mr. Dewada, Adv. for respondents.
CORAM : M.N. GILANI J.
DATE : 16.6.2011.
This is an application under section 378(4) of the
Criminal Procedure Code seeking leave to file an appeal
against the order of acquittal passed by learned Judicial
Magistrate, First Class (24th Court), Nagpur in Summary
Criminal Case No.13119/2008.
Mr. Dawada, learned counsel appearing for the
respondents, raised a preliminary objection about the
maintainability of the appeal before this Court. According to
him proviso to section 372, inserted by the Code of Criminal
Procedure Amendment Act, 2008 (for short Act of 2008),
which came into force with effect from 31st of December
2009, the forum for appeal would be the Sessions Court and
not the High Court. Proviso to section 372 reads as under :-
“Provided that the victim shall have a right to
prefer an appeal against any order passed by the
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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.”
While inserting the aforesaid provision the definition of
‘victim’ has also been incorporated as section 2(wa) which
reads as under :-
“victim” means a person who has suffered
any loss or injury caused by reason of the act or
omission for which the accused person has beencharged and the expression “victim” includes his
or her guardian or legal heir.
According to learned counsel for the respondents
expression ‘victim’ has to be given wider meaning to include
complainant in a complaint case. Being a victim he chooses
to file complaint case as such, the complainant cannot be
excluded from the term ‘victim’ occurring under section 2(wa)
of the Code of Criminal Procedure. Whenever there is an
order of acquittal and if victim, may be in the capacity of
complainant, is not satisfied with the said order, he has been
conferred with a right to question the judgment and the
forum has also been specified in the proviso to section 372 of
the Criminal Procedure Code. According to him, forum would
be the Court where ordinarily the appeal lies against the
order of conviction of such Court. Admittedly, appeals
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against the order of conviction, recorded under section 138 of
the Negotiable Installments Act, are filed before the Court of
Sessions. Therefore, an appeal against the order of acquittal
should also lie before the Court of Sessions, he urged.
I am not in agreement with the contention raised by
learned counsel for the respondents. Section 378 exclusively
deals with appeal in case of acquittal. Because of the recent
amendment which has come into force from 23/6/2006 two
forums are available for filing an appeal against the order of
acquittal. In respect of a cognizable and non-bailable
offences, the District Magistrate may direct the Public
Prosecutor to present an appeal to the Court of Sessions. In
other cases, the State Government or the Central
Government, as the case may be, may direct the Public
Prosecutor to present an appeal to the High Court. The
Criminal Procedure Code makes distinction between the case
filed by the complainant and the case filed on the police
report. If the case is instituted otherwise than upon a police
report that means if it is a complaint case and the accused is
acquitted, the complainant has a remedy to assail an order
by resorting to the provisions of section 378 (4) of the
Criminal Procedure Code which reads as under :-
” If such an order of acquittal is passed in any
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4Court, on an application made to it by the
complainant in this behalf, grants special leave to
appeal from the order of acquittal, thecomplainant may present such an appeal to the
High Court.”
Before Act of 2008 came into force, “victim” in a
criminal case, instituted on a police report, had no right to
file an appeal against the order of acquittal to any Court.
However, in a complaint case, right in the form of provisions
under section 378(4) of the Criminal Procedure Code was
already in existence. The Law Commission in its 154th report
recommended comprehensive amendments to the Code of
Criminal Procedure relating to various provisions concerning
arrest, custody, compounding of offences, victimology etc. In
the statement of objects and reasons of Act of 2008 it is
mentioned in para 2 that “at present, the victims are the worst
sufferers in a crime and they don’t have much role in the court
proceedings. They need to be given certain rights and
compensation, so that there is no distortion of the criminal
justice system.”
Thus based on the ‘doctrine of victimology’ proviso to
section 372 and the definition of ‘victim’ have been
incorporated w.e.f. 31st December 2009 thereby the victims
have not been left at the mercy of the State Government or
the Central Government (as the case may be) or the District
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Magistrate. The aforesaid provision does not in any manner
affect provisions of section 378(4) of the Criminal Procedure
Code dealing with the appeal against the order of acquittal in
any case instituted upon complaint.
In this view of the matter, appeal against an order of
acquittal, passed in the case instituted by the appellant, for
the offence punishable under section 138 of the Negotiable
Instruments Act would lie to this Court. I, therefore, do not
find any force in the preliminary objection, raised by the
learned counsel for the respondents.
Turning to the facts of the case, learned Magistrate in
para 11 of his judgment observed :
“It would be appropriate to mention the admitted
facts on record. It is admitted by the accused persons
that they used to purchase materials from the
complainant. The signature on cheque at Exh.24 isadmitted by the accused person. Issuance of demand
notice by the complainant is also admitted and reply to
said notice by the accused persons is also admitted by
the complainant.”
In this view of the matter, I find that the arguable
points are involved. Hence leave, as prayed for, is granted.
JUDGE
Tambaskar.
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