Rajasthan High Court - Jodhpur
Kanishq Jewels vs Gaurav Gurbani (2024:Rj-Jd:40482) on 27 September, 2024
Author: Birendra Kumar
Bench: Birendra Kumar
[2024:RJ-JD:40482]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Crml Leave To Appeal No. 326/2023
Kanishq Jewels, Through Proprietor/owner -Kavi Bhandari S/o
Sh. Bhopalchand Bhandari, Age 61 Years, R/o- 567, 9Th C Road,
Sardarpura, Jodhpur (Raj.).
----Appellant
Versus
Gaurav Gurbani S/o Late Sh. Ravindra Gurbani, Proprietor/owner
G.v.g. Jewels, Address- 1St Floor, Opposite School, Vidhyadhar Ji
Ka Rasta, Gopal Ji Ka Rasta, Johari Bazar, Jaipur (Raj.). Home
Address 121, Kanwar Nagar, Jaipur.
----Respondent
Connected With
S.B. Crml Leave To Appeal No. 327/2023
Kanishq Jewels, Through Proprietor/owner- Kavi Bhandari S/o
Sh. Bhopalchand Bhandari, Age 61 Years, R/o 567, 9Th C Road,
Sardarpura, Jodhpur,raj.
----Appellant
Versus
Gaurav Gurbani S/o Late Sh. Ravindra Gurbani, Proprietor/owner
G.v.g Jewels, Add. 1St Floor, Opp. School, Vidyadhar Ji Ka Rasta,
Gopal Ji Ka Rasta, Johari Bazar, Jaipur,raj. Home Add. 121,
Kanwar Nagar, Jaipur
----Respondent
S.B. Crml Leave To Appeal No. 328/2023
Kanishq Jewels, Through Proprietor/owner- Kavi Bhandari S/o
Sh. Bhopalchand Bhandari, Age 61 Years, R/o 567, 9Th C Road,
Sardarpura, Jodhpur,raj.
----Appellant
Versus
Gaurav Gurbani S/o Late Sh. Ravindra Gurbani, Proprietor/owner
G.v.g Jewels, Add. 1St Floor, Opp. School, Vidyadhar Ji Ka Rasta,
Gopal Ji Ka Rasta, Johari Bazar, Jaipur,raj. Home Add. 121,
Kanwar Nagar, Jaipur
----Respondent
S.B. Crml Leave To Appeal No. 329/2023
Kanishq Jewels, Through Proprietor/ Owner - Kavi Bhandari S/o
(Downloaded on 30/09/2024 at 09:06:59 PM)
[2024:RJ-JD:40482] (2 of 5)
Sh. Bhopalchand Bhandari, Age 61 Years, R/o 567, 9Th C Road,
Sardarpura, Jodhpur (Raj.)
----Appellant
Versus
Gaurav Gurbani S/o Late Sh. Ravindra Gurbani, Proprietor /
Owner G.v.g. Jewels, Address - 1St Floor, Opposite School,
Vidyadhar Ji Ka Rasta, Gopal Ji Ka Rasta, Johari Bazar, Jaipur
(Raj.) Home Address- 121, Kanwar Nagar, Jaipur.
----Respondent
For Appellant(s) : Mr. Sudhir Saruparia.
For Respondent(s) :
HON'BLE MR. JUSTICE BIRENDRA KUMAR
Order
27/09/2024
These applications for grant of leave to file appeals have
been filed by complainant-Kanishq Jewels against the order dated
05.10.2023 passed in Criminal Original Case Nos.2859/2021,
2858/2021, 2861/2021, 2860/2021 where-under the sole
respondent has been acquitted of the charge under Section 138 of
the Negotiable Instruments Act.
It is not disputed that the cheque was issued in favour of the
applicant. Therefore, the applicant 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:40482] (3 of 5)
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.
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.
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:40482] (4 of 5)
where an order of acquittal is passed in any case instituted upon
complaint.
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."
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.
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.
The appellant would be at liberty to present an appeal
against acquittal before concerned Sessions Judge within a period
[2024:RJ-JD:40482] (5 of 5)
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 06.11.2023 till today.
Accordingly, these leave to appeals stand disposed of.
(BIRENDRA KUMAR),J
171-174-sumer/-
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