Appeal Against Order Of Acquittal U/S 138 NI Act Lies To High Court U/S 378(4) CrPC & Not Under Proviso To S. 372 CrPC: Chhattisgarh HC

The Chhattisgarh High Court has clarified that appeal against the order of acquittal under Section 138 of the Negotiable Instruments Act, 1881 lies to the High Court under Section 378(4) of the Code of Criminal Procedure and not under proviso to Section 372 of the Code.

The Single Bench of Justice Deepak Kumar Tiwari was hearing a criminal revision filed by the revision-petitioner who was aggrieved by the judgment of acquittal passed in favour of the respondent by the Additional District Judge, Durg upholding the order of JMFC, Durg.

While dismissing the appeal, the ADJ had observed that in a complaint case filed under Section 138 of the NI Act, a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to High Court by invoking the powers under Section 378(4) of the Cr.P.C.

Justice Tiwari carved out a seminal question for determination by the High Court as to whether the appeal against acquittal in prosecution for the offence punishable under Section 138 of the NI Act would lie under Section 378(4) of the CrPC or would be as per proviso to Section 372 of the CrPC.

For answering the aforesaid question of law, the Bench relied upon the judgment of the Supreme Court in Mallikarjun Kodagali (D) represented through LRs. v. State of Karnataka & Ors., wherein the interplay between Section 378(4) and provision to Section 372 of the CrPC was interpreted in the following words:

“The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word “complaint” has been defined in Section 2(d) CrPC and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR, and therefore it is not at all necessary to consider the effect of a victim being the complainant as far as the proviso to Section 372 is concerned.”

After relying upon the aforesaid observation, the Court said that the definition of 'complaint' as provided under Section 2(d) of the CrPC does not include a 'police report'. Also it highlighted that Section 378(4) provides the complainant with the right to file appeal against acquittal in a case instituted upon a complaint, once special leave to appeal is granted by the High Court.

It also noted that in Mallikarjun Kodagali (supra), the Supreme Court held Section 378(4) to be confined to an order of acquittal passed in a case instituted upon a complaint.

“The position is further clarified by the observation that the word 'complaint' as defined in Section 2(d) of the Cr.P.C. refers to any allegation made orally or in writing to a Magistrate and has nothing to do with the lodging or registration of an FIR,” it held.

Accordingly, the Court arrived at a conclusion that appeal against orders of acquittal under Section 138 of the NI Act shall lie to the High Court only under Section 378(4) and not under proviso to Section 372 of the CrPC.

Case Title: Tarkeshwar Sahu v. Amit Lilhare

Case No: CRR No. 383 of 2023

Date of Order: January 08, 2024

Counsel for the Revision Petitioner: Mr. Rudranath Mukherjee, Advocate

Counsel for the Respondent: Mr. Virendra Verma, Advocate

Citation: 2024 LiveLaw (Chh) 1

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