Rajasthan High Court - Jodhpur
Nathu Ram Bansal vs State & Anr on 28 February, 2013
Author: Sandeep Mehta
Bench: Sandeep Mehta
1.
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
S. B. CRIMINAL LEAVE TO APPEAL NO. 74/2012 (Nathu Ram Bansal Vs. The State of Rajasthan & Anr.) DATE OF ORDER : 28th February, 2013 HON'BLE MR. JUSTICE SANDEEP MEHTA Mr. M.K. Garg, for the appellant.
Mr. O.P. Singaria, Public Prosecutor.
Mr. R. Bhatnagar, for the respondent No.2. REPORTABLE The instant application for Leave to Appeal has been filed on behalf of appellant - Nathu Ram Bansal being aggrieved of the order dated 25.11.2011 passed by the learned Special Judicial Magistrate, (N.I. Act Cases), Sri Ganganagar in Criminal Regular Compliant Case No.1832/2010, whereby, the learned Magistrate acquitted the respondent No.2 from the offence under Section 138 of the Negotiable Instruments Act.
In this case, initially, the complainant aggrieved by the rejection of his complaint filed an appeal in the court of the learned Addl. Sessions Judge, No.2, Sri Ganganagar under Section 372 Cr.P.C., but thereafter, on being advised that the judgment of acquittal in a complaint case could only be challenged by way of filing an application for Leave to Appeal, 2. the said Appeal No.17/2012 was withdrawn from the court of the learned Addl. Sessions Judge, No.2, Sri Ganganagar on 12.4.2012. Thereafter, the instant application for Leave to Appeal has been filed by the complainant in this court assailing the order of acquittal of the respondent No.2 for the offence under Section 138 of the N.I. Act.
The office has put an objection regarding the application for Leave to Appeal being barred by limitation. An application under Section 5 of the Limitation Act has been filed on behalf of the applicant for condonation of delay occasioned in filing of the appeal due to bonafide reasons. Notice of the application was issued to the respondents.
Learned counsel Shri R.Bhatnagar appearing on behalf of the respondent No.2 raised a preliminary objection that in the light of the decision rendered by the Hon'ble Single Bench of this Court in the case of Laxmilal Menariya & Ors. Vs. Rajendra Kumar & Ors, reported in 2012 (4) Cr.L.R. (Raj.) 2015, an application for Leave to Appeal is not maintainable in the High Court against a judgment of acquittal passed by the learned Magistrate in a complaint case under Section 138 of the N.I. Act. He submits that this Court in the above referred decision has held that the complainant is a victim as defined under Section 3(wa) Cr.P.C. and, therefore, he has a right to challenge the judgment of acquittal recorded by a Magistrate 3. in a complaint case by way of filing an appeal under Section 372 Cr.P.C. in the concerned Sessions Court. Therefore, he submits that the application for grant of leave to appeal deserves to be rejected.
Shri M.K. Garg on the other hand submits that in a earlier decision of a Hon'ble Single Bench of this Court in the case of Manju Kawadiya Vs. Ghanshyam Sahu, reported in 2011(1) Cr.L.R. (Raj.) 421, this Court has held that an appeal against the judgment of acquittal recorded on the basis of a private complaint under Section 138 of the N.I. Act is assailable only under Section 378(4) Cr.P.C. by filing an application for Leave to Appeal and that such a judgment cannot be assailed by way of an appeal filed before the Sessions Court under Section 372 Cr.P.C. He urges that the said decision was not brought to the notice of the Hon'ble Single Bench of this Court whilst the case of Laxmilal Menariya (supra) was being considered and, as such, the latter judgment having been passed in ignorance of the earlier decision of a Co-ordinate Single Bench cannot be held to be laying down a good law.
Heard and considered the arguments advanced at the bar.
The controversy now is no longer res integra. The 4. Hon'ble Apex Court in the case of Subhash Chand Vs. State (Delhi Administration), reported in 2013 (2) SCC 17 has considered the legal situation in this regard and laid the controversy to rest. The Hon'ble Apex Court was seized of an issue as to whether the judgment of acquittal in a complaint case could be assailed otherwise than under an application for Special Leave to Appeal filed under Section 378(4) Cr.P.C. before the High Court.
The question which the Hon'ble Apex Court framed for consideration is quoted hereinbelow:-
"The short point which arises for consideration in this appeal is whether in a complaint case, an appeal from an order of acquittal of the Magistrate would lie to the Sessions Court under Section 378(1)(a) of the Code or to the High Court under Section 378(4) of the Code."
The Hon'ble Apex Court after considering all the legal facts involved in the matter, answered the question as below:-
"In view of the above, we conclude that a complainant can file an application for 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 view of the aforesaid authoritative pronouncement of the Hon'ble Apex Court in the case of Subhash Chand (supra), wherein, the Hon'ble Apex Court held that in the complaint 5. case, the appeal against the judgment of acquittal could be brought in only by way of filing an application for Special Leave to Appeal in the High Court under Section 378(4) Cr.P.C. and not in the Sessions Court. The Hon'ble Apex Court also considered the amendments made in the Code of Criminal Procedure in the year 2009 and, thereafter, reached to a conclusion that the judgement of acquittal in a complaint case can only be assailed by way of filing an application for Leave to Appeal. Thus, the view taken by the learned Single Judge of this Court in the case of Laxmilal Menariya (supra) cannot be considered to be a good law.
Accordingly, the preliminary objection raised by the learned counsel for the respondent No.2 that application for Leave to Appeal against the order of acquittal passed by a Magistrate in a complaint case is not maintainable before this Court is hereby rejected.
List the matter for orders.
(SANDEEP MEHTA), J.
ms rathore