Rajasthan High Court - Jodhpur
Jitendra Kumar vs State Of Rajasthan (2024:Rj-Jd:43154) on 22 October, 2024
Author: Birendra Kumar
Bench: Birendra Kumar
[2024:RJ-JD:43154]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Appeal (Sb) No. 950/2022
Jitendra Kumar S/o Shri Badri Lal, Aged About 38 Years, R/o
Ward No. 1, Dev Nagar, Purani Aabadi, Sri Ganganagar.
----Appellant
Versus
1. State Of Rajasthan, Through Pp
2. Ram Kumar S/o Shri Moda Ram, R/o 435, Azad Nagar,
Ward No. 1, Gali No. 3, Purani Aabadi, Sri Ganganagar.
----Respondents
For Appellant(s) : Ms. Sonika Poonia for
Mr. D.S. Thind
For Respondent(s) : Mr. Urja Ram Kalbi, PP
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
22/10/2024
1. This application for grant of leave to file appeal has been
filed by complainant- Jitendra Kumar against the judgment dated
22.12.2021 passed in Criminal Case No.120/2016, where-under
the respondent No.2 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:43154] (2 of 4) [CRLAS-950/2022]
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)
of Section 378 Cr.P.C. in the case of a complainant and in a case
[2024:RJ-JD:43154] (3 of 4) [CRLAS-950/2022]
where an order of acquittal is passed in any case instituted upon
complaint.
6. Learned counsel for the applicant 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
complaintant 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.
9. The appellant would be at liberty to present an appeal
against acquittal before concerned Sessions Judge within a period
[2024:RJ-JD:43154] (4 of 4) [CRLAS-950/2022]
of 15 days from the date of this order. The learned Appellate Court
while considering the period of limitation shall consider that the
petitioner was bona-fidely prosecuting the same matter before
wrong forum (herein) from 28.06.2022 till today.
10. Accordingly, this leave to appeal stands disposed of.
(BIRENDRA KUMAR),J
59-nitin/-
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