Gauhati High Court
M/S Pashupati Air Travels vs Sri Bikas Kumar Jain @ Vikash Jain ... on 16 March, 2021
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GAHC010048772020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.)/199/2020
M/S PASHUPATI AIR TRAVELS
A SOLE PROPRIETORSHIP CONCERN OF SRI DIPESH BANSAL, S/O SRI
PREM SAGAR BANSAL, HAVING ITS OFFICE SITUATED AT KEDAR ROAD,
NEAR HOTEL RITURAJ, GUWAHATI-781001, KAMRUP(METRO), ASSAM
VERSUS
SRI BIKAS KUMAR JAIN @ VIKASH JAIN AND ANR
S/O SRI DHAMAL JAIN, R/O 28-301, 3RD FLOOR, JAIN KUNJ, S.J. ROAD,
NEAR MARWARI HOSPITAL AND RESEARCH CENTRE, ATHGAON,
GUWAHATI-781008, KAMRUP(METRO), ASSAM.
2:THE STATE OF ASSAM
REP. BY P.P
Advocate for the Petitioner : MR Z KAMAR
Advocate for the Respondent : PP, ASSAM
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BEFORE
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
ORDER
Date : 16-03-2021
Heard Mr. Z Kamar, learned senior counsel for the applicant/complainant as well as Mr. A
Sancheti, learned counsel for the respondent No. 1.
Also heard Mr. NK Kalita, learned Additional Public Prosecutor, appearing for the State
respondent No. 2, who has submitted that the State is a formal party only.
The connected appeal has been preferred against an order of acquittal, passed by the learned
Sub-Divisional Judicial Magistrate No.-II, Kamrup (M), Guwahati, vide judgment, dated 30.12.2019 in
CR Case No. 1149C/2017, under Section 138 of the NI Act, 1881.
The leave is sought for on the ground that the judgment of acquittal passed by the learned
court below is not based on materials on record rather, according to Mr. Kamar, learned senior counsel
for the applicant/complainant, the materials are sufficient to hold the accused guilty and convict him
accordingly.
I have perused the materials placed before this Court, as of now.
Mr. Sancheti, learned counsel for the respondent No. 1, however has objected to the prayer for
granting leave. He has submitted that the appeal should have been filed before the learned Session
court and High Court is not the appropriate forum for preferring this appeal against acquittal. He has
referred to the proviso to Section 372 of the Cr.PC. However, Mr. Kamar, learned senior counsel for the
applicant/complainant has referred to the decision of the Hon'ble Supreme Court in the case of
Mallikarjun Kodagali (dead), represented through legal representatives vs. State of
Karnataka & Ors., reported in (2019) 2 SCC 752 and particularly para 76 thereof. The aforesaid
para is quoted below for convenience of appreciation:-
"76. As far as the question of the grant of special leave is concerned, once
again, we need not be overwhelmed by submissions made at the Bar. The language of
the proviso to Section 372 of the Cr.P.C. is quite clear, particularly when it is contrasted
with the language of Section 378(4) of the Cr.P.C. 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) of the Cr.P.C. and
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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 of the Cr.P.C. is concerned."
The admitted position is that the case on which the order of acquittal was recorded by the
learned court below against which leave has been sought for to prefer an appeal is under Section 138
of the NI Act and there is no dispute at the bar that the case is a complaint case.
In the considered view of this Court, on perusal of the decision aforesaid Mallikarjun
Kodagali (supra), this Court is of the view that there is no dispute that appeal lies before this Court
against order of acquittal in a complaint case. At the cost of repetition, this Court would like to
mention again that leave sought for in this application is for preferring an appeal is in connection with
a complaint case.
On the other hand, on perusal of the materials, as indicated above, this Court finds that there
is ground for preferring this appeal. Accordingly, the leave is granted.
Accordingly, this interlocutory application is allowed.
The Registry to register the connected appeal and place the same before this Court for orders.
JUDGE
Comparing Assistant
