Rajasthan High Court - Jodhpur
Hemant Khatri vs Kailash (2024:Rj-Jd:42256) on 17 October, 2024
Author: Birendra Kumar
Bench: Birendra Kumar
[2024:RJ-JD:42256]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal (Sb) No. 2104/2022
Hemant Khatri S/o Shri Poonam Chand Khatri, Aged About 44
Years, R/o Ghandi Colony Jaisalmer Tehsil And Dist. Jaisalmer
----Appellant
Versus
Kailash S/o Shri Dana Nanu, R/o House Of Shiv Dan Charan
House No. 458 Subhash Marg Near House Of Gopal Ji Shripat
Ghandi Colony Jaislamer Tehsil And Dist. Jaisalmer
----Respondent
For Appellant(s) : None present
For Respondent(s) : Mr. Rajat Choudhary
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
17/10/2024
1. This appeal has been filed by the complainant against
judgment dated 07.11.2022 passed in Criminal Original Case
No.1586/2017, whereby the sole respondent has been acquitted
of the charge under Section 138 of the Negotiable Instruments
Act.
2. It is not disputed that the cheque was issued in favour of the
appellant. Therefore, the appellant was victim of the crime as
defined under Section 2(y) of the Bharatiya Nagarik Suraksha
Sanhita, 2023 (BNSS), which reads as follows :
Section 2(y) "Victim" means a person who has
suffered any loss or injury caused by reason of
the act or omission of the accused person and
includes the guardian or legal heir of such
victim."
[2024:RJ-JD:42256] (2 of 4) [CRLAS-2104/2022]
3. Section 413 BNSS is corresponding provision of Section 372
Cr.P.C., wherein, proviso was inserted by amendment with effect
from 31.12.2009. The said provision under Section 413 BNSS
reads as follows :
"413. No appeal to lie unless otherwise
provided.- No appeal shall lie from any judgment or
order of a Criminal Court except as provided for by his
Sanhita or by any other law for the time being in
force:
Provided that the victim shall have a right to
prefer an appeal against any order passed by the
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.
4. Evidently, the victim shall have right to prefer an appeal
before the appellate forum and for preferring appeal no leave is
needed. Therefore, the present appeal should have been filed
before the concerned District and Sessions Judge.
5. In Mallikarjun Kodagali Vs. State of Karnataka & Ors.,
reported in (2019) SCC 752 as well as Joseph Stephen &
Ors. Vs. Santhanasamy & Ors., reported in (2022) 13 SCC
115, the Hon'ble Supreme Court held that so far as the victim is
concerned, the victim has not to pray for grant of special leave to
appeal, as the victim has a statutory right of appeal under Section
372 proviso and the proviso to Section 372 does not stipulate any
condition of obtaining special leave to appeal like sub-Section (4)
[2024:RJ-JD:42256] (3 of 4) [CRLAS-2104/2022]
of Section 378 Cr.P.C. in the case of a complainant and in a case
where an order of acquittal is passed in any case instituted upon
complaint.
6. Learned counsel for the appellant has referred to the
provisions of sub-section 4 of Section 419 of the BNSS, which is
reproduction of Section 378(4) Cr.P.C. The said provision reads as
follows:
"378(4) If such an order of acquittal is passed
in any case instituted upon complaint and the High
Court, on an application made to it by the
complainant in this behalf, grants special leave to
appeal from the order of acquittal, the complainant
may present such an appeal to the High Court."
7. Evidently, a leave to appeal is required by the complainant of
such cases, who is not a victim as defined above. The law is well-
settled that any person can set the criminal proceedings in
motion, if he has knowledge of commission of any cognizable
offences, such step may be taken by filing an F.I.R. with the police
or a complaint petition before a Magistrate.
8. If such complainant, is not a victim as defined above then,
he would be required to prefer leave application before the High
Court for preferring appeal against acquittal. However, if the
complainant is a victim of the crime, he/she shall have right under
Proviso to Section 413 BNSS to prefer appeal against acquittal,
conviction for a lesser offence or imposing inadequate
compensation.
[2024:RJ-JD:42256] (4 of 4) [CRLAS-2104/2022]
9. 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. The learned Appellate Court
while considering the period of limitation shall consider that the
appellant was bona-fidely prosecuting the same matter before
wrong forum (herein) from 15.12.2022 till today.
10. Accordingly, this appeal stands disposed of.
(BIRENDRA KUMAR),J
15-deep/-
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