Rajasthan HC: Complainant in Case Under S 138 of NI Act is victim as per s 2(y) of BNSS, he can file appeal against acquittal before Sessions Court
This application for grant of leave to file appeal has been filed by complainant-Vikram Manshani against the judgment dated 12.02.2024 passed in Criminal Case No.3108\/2016, where-underthe sole respondent has been acquitted of the charge under<\/p>\n\n\n\n
Section 138 of the Negotiable Instruments Act.<\/p>\n\n\n\n
It is not disputed that the cheque was issued in favour of the<\/p>\n\n\n\n
applicant. Therefore, the applicant was victim of the crime as<\/p>\n\n\n\n
defined under Section 2(y) of the Bharatiya Nagarik Suraksha<\/p>\n\n\n\n
Sanhita, 2023 (BNSS), which reads as follows :<\/p>\n\n\n\n
Section 2(y) \u201cVictim\u201d means a person who has<\/p>\n\n\n\n
suffered any loss or injury caused by reason of<\/p>\n\n\n\n
the act or omission of the accused person and<\/p>\n\n\n\n
includes the guardian or legal heir of such<\/p>\n\n\n\n
victim.\u201d<\/p>\n\n\n\n
If such complainant, is not a victim as defined above then,<\/p>\n\n\n\n
he would be required to prefer leave application before the High<\/p>\n\n\n\n
Court for preferring appeal against acquittal. However, if the<\/p>\n\n\n\n
complainant is a victim of the crime, he\/she shall have right<\/p>\n\n\n\n
under Proviso to Section 413 BNSS to prefer appeal against<\/p>\n\n\n\n
acquittal, conviction for a lesser offence or imposing inadequate<\/p>\n\n\n\n
compensation.<\/p>\n\n\n\n
The appellant would be at liberty to present an appeal against acquittal before concerned Sessions Judge within a period of 15 days from the date of this order.<\/p>\n\n\n\n
HIGH COURT OF JUDICATURE FOR RAJASTHAN<\/p>\n\n\n\n
JODHPUR<\/p>\n\n\n\n
S.B. Crml Leave To Appeal No. 384\/2024<\/p>\n\n\n\n
Vikram Manshani Vs Praveen Sharma<\/p>\n\n\n\n
Coram: MR. JUSTICE BIRENDRA KUMAR<\/p>\n\n\n\n
Dated: 06\/08\/2024.<\/p>\n\n\n\n
This application for grant of leave to file appeal has been<\/p>\n\n\n\n
filed by complainant-Vikram Manshani against the judgment dated 12.02.2024 passed in Criminal Case No.3108\/2016, where-underthe sole respondent has been acquitted of the charge under<\/p>\n\n\n\n
Section 138 of the Negotiable Instruments Act.<\/p>\n\n\n\n
It is not disputed that the cheque was issued in favour of the<\/p>\n\n\n\n
applicant. Therefore, the applicant was victim of the crime as<\/p>\n\n\n\n
defined under Section 2(y) of the Bharatiya Nagarik Suraksha<\/p>\n\n\n\n
Sanhita, 2023 (BNSS), which reads as follows :<\/p>\n\n\n\n
Section 2(y) \u201cVictim\u201d means a person who has<\/p>\n\n\n\n
suffered any loss or injury caused by reason of<\/p>\n\n\n\n
the act or omission of the accused person and<\/p>\n\n\n\n
includes the guardian or legal heir of such<\/p>\n\n\n\n
victim.\u201d<\/p>\n\n\n\n
Section 413 BNSS is corresponding provision of Section 372<\/p>\n\n\n\n
Cr.P.C., wherein, proviso was inserted by amendment with effect<\/p>\n\n\n\n
from 31.12.2009. The said provision under Section 413 BNSS<\/p>\n\n\n\n
reads as follows :<\/p>\n\n\n\n
\u201c413. No appeal to lie unless otherwise<\/p>\n\n\n\n
provided.- No appeal shall lie from any judgment or<\/p>\n\n\n\n
order of a Criminal Court except as provided for by his<\/p>\n\n\n\n
Sanhita or by any other law for the time being in<\/p>\n\n\n\n
force:<\/p>\n\n\n\n
Provided that the victim shall have a right to<\/p>\n\n\n\n
prefer an appeal against any order passed by the<\/p>\n\n\n\n
Court acquitting the accused or convicting for a lesser<\/p>\n\n\n\n
offence or imposing inadequate compensation, and<\/p>\n\n\n\n
such appeal shall lie to the Court to which an appeal<\/p>\n\n\n\n
ordinarily lies against the order of conviction of such<\/p>\n\n\n\n
Court.<\/p>\n\n\n\n
Evidently, the victim shall have right to prefer an appeal<\/p>\n\n\n\n
before the appellate forum and for preferring appeal no leave is<\/p>\n\n\n\n
needed. Therefore, the present appeal should have been filed<\/p>\n\n\n\n
before the concerned District and Sessions Judge.<\/p>\n\n\n\n
In Mallikarjun Kodagali Vs. State of Karnataka & Ors.,<\/p>\n\n\n\n
reported in (2019) SCC 752 as well as Joseph Stephen &<\/p>\n\n\n\n
Ors. Vs. Santhanasamy & Ors., reported in (2022) 13 SCC<\/p>\n\n\n\n
115, the Hon\u2019ble Supreme Court held that so far as the victim is<\/p>\n\n\n\n
concerned, the victim has not to pray for grant of special leave to<\/p>\n\n\n\n
appeal, as the victim has a statutory right of appeal under Section<\/p>\n\n\n\n
372 proviso and the proviso to Section 372 does not stipulate any<\/p>\n\n\n\n
condition of obtaining special leave to appeal like sub-Section (4)<\/p>\n\n\n\n
of Section 378 Cr.P.C. in the case of a complainant and in a case<\/p>\n\n\n\n
where an order of acquittal is passed in any case instituted upon<\/p>\n\n\n\n
complaint.<\/p>\n\n\n\n
Learned counsel for the applicant has referred to the<\/p>\n\n\n\n
provisions of sub-Section 4 of Section 419 of the BNSS, which is<\/p>\n\n\n\n
reproduction of Section 378(4) Cr.P.C. The said provision reads as<\/p>\n\n\n\n
follows:<\/p>\n\n\n\n
\u201c378(4) If such an order of acquittal is passed<\/p>\n\n\n\n
in any case instituted upon complaint and the High<\/p>\n\n\n\n
Court, on an application made to it by the<\/p>\n\n\n\n
complainant in this behalf, grants special leave to<\/p>\n\n\n\n
appeal from the order of acquittal, the complainant<\/p>\n\n\n\n
may present such an appeal to the High Court.\u201d<\/p>\n\n\n\n
Evidently, a leave to appeal is required by the complainant of<\/p>\n\n\n\n
such cases, who is not a victim as defined above. The law is well settled that any person can set the criminal proceedings in<\/p>\n\n\n\n
motion, if he has knowledge of commission of any cognizable<\/p>\n\n\n\n
offences, such step may be taken by filing an F.I.R. with the police<\/p>\n\n\n\n
or a complaint petition before a Magistrate.<\/p>\n\n\n\n
If such complainant, is not a victim as defined above then,<\/p>\n\n\n\n
he would be required to prefer leave application before the High<\/p>\n\n\n\n
Court for preferring appeal against acquittal. However, if the<\/p>\n\n\n\n
complainant is a victim of the crime, he\/she shall have right<\/p>\n\n\n\n
under Proviso to Section 413 BNSS to prefer appeal against<\/p>\n\n\n\n
acquittal, conviction for a lesser offence or imposing inadequate<\/p>\n\n\n\n
compensation.<\/p>\n\n\n\n
The appellant would be at liberty to present an appeal<\/p>\n\n\n\n
against acquittal before concerned Sessions Judge within a period<\/p>\n\n\n\n
of 15 days from the date of this order. The learned Appellate Court<\/p>\n\n\n\n
while considering the period of limitation shall consider that the<\/p>\n\n\n\n
petitioner was bona-fidely prosecuting the same matter before<\/p>\n\n\n\n
wrong forum (herein) from 08.07.2024 till today.<\/p>\n\n\n\n
Accordingly, this leave to appeal stands disposed of.<\/p>\n\n\n\n
(BIRENDRA KUMAR),J<\/p>\n","protected":false},"excerpt":{"rendered":"
Rajasthan HC: Complainant in Case Under S 138 of NI Act is victim as per s 2(y) of BNSS, he can file appeal against acquittal before Sessions CourtThis application for grant of leave to file appeal has been filed by complainant-Vikram Manshani against the judgment dated 12.02.2024 passed in Criminal Case No.3108\/2016, where-underthe sole respondent […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"footnotes":""},"categories":[1],"tags":[],"class_list":["post-5928","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"yoast_head":"\n