CRIMINAL APPLICATION (APPA) NO. 201 OF 2018

23rd August 2019

Petitioner Counsel: Shri Palash K. Mohta
Respondent Counsel: Shri Yash Maheshwari
Act Name: Negotiable Instruments Act, 1881 Criminal Procedure Code, 1973

Section :
Section 138 Negotiable Instruments Act, 1881 Section 139 Negotiable Instruments Act, 1881 Section 372 Criminal Procedure Code, 1973 Section 378(4) Criminal Procedure Code, 1973

Cases Cited :
Paras 2, 4, 35: Shantaram s/o Laxman Tande Vs. Dipak s/o Madhav Gaikwad, 2011 ALL MR (Cri) 3473
Paras 3, 4, 35, 36: Mallikarjun Kodagali (Dead) Represented through Legal Representatives Vs. State of Karnataka & others, (2019) 2 SCC 752
Para 19: Rajkumar Khurana Vs. State of (NCT, of Delhi), (2009) 6 SCC 72
Para 25: Motiram Gheelabhai through LR Vs. Jagan Nagar, (1985) 2 SCC 279
Para 27: Subhash Chand vs. State (Delhi Administration), 2013) 2 SCC 17
Para 28: Balasaheb Rangnath Khade & Ors. Vs. State of Maharashtra & Ors., 2012 (3) Bom. C.R. (Cri.) 632]
Para 29: Smt. P. Vijaya Laxmi Vs. Smt. S. P. Sravana & Anr., 2018 Cri. L.J. 1338
Para 30: Selvaraj Vs. Venkatachalapathy, decided on 04.08.2014 in Criminal Appeal No. 20 of 2014
Para 31: M/s. Top Notch Infotronix (I) Pvt. Ltd. Vs. M/s. Infosoft Systems, 2011 (6) Mh. L.J.
Para 34: S. Ganapathy Vs. N. Senthilvel , 2017 CRI. L.J. 602

JUDGEMENT

PUSHPA V. GANEDIWALA, J.

1. This Bench has been constituted by the directions of Hon'ble the Chief Justice to decide the undermentioned question which has been referred for consideration by the Single Bench of this Court by an order dated 30.10.2018. The question reads thus:
“Whether the appeal against acquittal in prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, would lie under Section 378(4) of the Code of Criminal Procedure or would be as per proviso below Section 372 of the Code of Criminal Procedure ?”

2. The occasion to refer the aforesaid question for consideration arose when there was an issue before the Court about maintainability of an appeal under Section 378(4) of the Code of Criminal Procedure, 1973 (for short 'Code') in a case initiated on a private complaint u/s 138 of the Negotiable Instruments Act, 1881 (for short 'Act of 1881'). The learned counsel Shri P.K. Mohta for the appellant referred judgment of this Court in the case of Shantaram s/o Laxman Tande vs. Dipak s/o Madhav Gaikwad, reported at 2011 ALL MR (Cri) 3473 in support of his argument on maintainability of appeal u/s 378(4) of the Code. In the said judgment, the learned Single Judge of this court took a view that the provisions of Section 378(4) of the Code and the proviso below Section 372 of the Code, operate in distinct areas. It is further recorded that the remedy under Section 378(4) of the Code will be available to the complainant in cases instituted upon private complaint and as per proviso below Section 372 of the Code, right of appeal will be available to the 'victim' in police cases where the State avoids or fails to file the same.

3. The learned referral Judge relied on the judgment of the Hon'ble Apex Court in the case of Mallikarjun Kodagali (Dead) Represented through Legal Representatives vs. State of Karnataka & others, reported at (2019) 2 SCC 752, wherein their Lordships have taken a view that in the case of Bhauvuban Dineshbhai Makwana vs. State of Gujarat & Ors., Gujarat High Court has made an artificial and unnecessary distinction between the “victim as a victim” and “victim as a complainant” in respect of filing of an appeal against an order of acquittal and proviso to Section 372 of the Code of Criminal Procedure does not introduce or incorporate any such distinction.

4. The learned referral Judge opined that the proposition laid down in the judgment in the case of Shantaram s/o Laxman Tande vs. Dipak s/o Madhav Gaikwad, (supra) requires reconsideration in view of the opinion expressed by the Hon'ble Apex Court in the judgment of Mallikarjun Kodagali (Dead) Represented through Legal Representatives vs. State of Karnataka & others, (supra).

5. We have extensively heard Shri Palash K. Mohta, learned counsel for the applicant and Shri Yash Maheshwari, learned counsel for the respondent.

6. Shri Mohta, learned counsel for the applicant took us through the relevant provisions of the Code and legal pronouncements of the Hon'ble Apex Court and different High Courts and submitted that almost all the High Courts are of the view that Appeal against Acquittal in a case initiated on private complaint would lie to the High Court after obtaining Special Leave under Section 378(4) of the Code.

7. Per contra, learned counsel Shri Maheshwari questioned the maintainability of such appeals against acquittal before the High Court in cases instituted upon private complaints filed under Section 138 of the Act of 1881. Learned counsel also referred relevant statutory provisions and citations in support of his argument.

8. In the background of above facts, relevant provisions of the Code of Criminal Procedure, necessary to decide the reference, are reproduced hereunder :
“S. 372. ­ 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 this Code 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.
S. 378 ­ Appeal in case of acquittal ­ (1) Save as otherwise provided in Sub­Section (2) and subject to the provisions of Sub­Sections (3) and (5), ­
(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non­bailable offence;
(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of sub­section (3), also direct the Public Prosecutor to present an appeal —
(a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non­bailable offence;
(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.
(3) No appeal under sub­section (1) or subsection (2) shall be entertained except with the leave of the High Court.
(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.
(5) No application under sub­section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If, in any case, the application under subsection (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub­section (1) or under sub­section (2).
2(d). “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report.”
2(wa). “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir;”

9. While adverting to decide the question under reference, it is apposite to consider the object of introducing Section 138 in the Act of 1881 vide Amendment Act 66 of 1998. The new Chapter XVII consisting of Sections 138 to 142 was added in the Act of 1881, specifically to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable for penalties in case of bouncing of cheques due to insufficiency of funds in the accounts or for the reason that it exceeds the arrangement made by the drawer. Section 138 of the Act of 1881 is applicable only in case the cheque is presented for payment within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier. The other conditions to constitute the offence are :
I) the payee should have made a demand for payment by registered notice after the cheque is returned unpaid; and
II) the drawer should have failed to pay the amount demanded within 15 days of the receipt of notice.

10. Section 139 of the Act of 1881 casts a rebuttable presumption that a holder of a cheque has received the same towards discharge of liability. Section 140 of the Act specifically precludes the drawer from pleading that he had no reason to believe that the cheque would be dishonored. Under Section 142 of the Act, the offence has been specifically made cognizable only on the basis of a written complaint filed by the payee or holder in due course of the cheque. Section 142(b) prescribes a period of one month for filing a complaint from the date on which the cause of action arises under Clause (c) of the proviso to Section 138 of the Act of 1881.

11. The scheme of the provisions contained in the new Chapter would indicate that it is primarily to provide an additional criminal remedy over and above the civil remedies available under the law to the payee or holder in due course. It is an optional remedy available in addition to the ordinary civil remedies. There is no compulsion to the payee or holder in due course to file a complaint on commission of an offence by the drawer of the cheque. The right to prosecute the defaulting party to the contract between the payee and the drawer cannot be considered as one conferred for the benefit of the community as a whole. The state has no role to play. The object is to enhance the acceptability of cheques in settlement of liabilities by making the drawer liable. So also, the object is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instrument.

12. Although, an omission to honour the cheque by the drawer is made an offence under the deeming fiction, it is basically in the realm of civil wrong and not the crime per se. The civil liability of a person has been converted into a criminal offence.

13. The offence under Section 138 of the Act of 1881, is not committed on the date of issuance of the cheque. The cause of action arises only after the cheque is dishonoured for specified reasons and thereafter even after demand, the person concerned fails to pay the amount covered by the cheque. The offences are bailable, compoundable and non­cognizable. The proceedings can be instituted only by filing a complaint case under Section 200 before the Court of a Competent jurisdiction. No court is competent to take cognizance of the said offence except upon a complaint in writing made by the payee or holder in due course of the cheque. Police has no role to regulate the proceedings. Mens rea is not an essential ingredient for commission of offence under this Act.

14. Section 2(wa) and proviso to Section 372 have been added in the Code with effect from 31.12.2009. The purpose and object of the amendment was to provide relief to the 'victims' of offence who hitherto had practically no role to play in the criminal proceedings and who were to remain as mute spectators and was not at all to cover a situation where the complainant in a private complaint under Section 138 of the Act of 1881, who already had a remedy by way of appeal for redressal of his/ her grievance. As such, the “complainant” as referred in Section 138 of the Act of 1881 proceedings cannot be treated at par with 'victim' of a crime for whose benefit amendments have been brought into existence. It is a kind of privilege conferred upon a victim to vent his/ her grievance by preferring an appeal on limited grounds enumerated in the proviso to Section 372 of the Code. It is a separate and statutory right and is not dependent either upon or is subservient of the right of appeal of the State. The purpose of introduction of Section 372 in the Code is only and only to give voice to the erstwhile speechless victim in cases initiated on police reports.

15. On the contrary, in a case initiated by filing a private complaint before the Competent Court, in case of acquittal, the complainant was/ is having remedy to file appeal under Section 378(4) of the Code. At the same time the State is also not debarred from filing appeal against acquittal in a case initiated on private complaint which is in the realm of public law wherein the crime is considered to have been committed against the society. As stated earlier, the purpose of introduction of Section 138 of the Act of 1881 and allied provisions in the Act of 1881 is only to give efficacy and to inculcate faith of the public in such transactions. Thus, the complainant as contemplated under Section 138 of the Act of 1881, cannot be treated as a victim under 'proviso' to Section 372 of the Code.

16. Provision of sub­clause (4) to Section 378 of the Code of obtaining Special Leave to file Appeal is an embargo to check frivolous and unwarranted litigations. “Prima facie” if no case is made out, leave to file an appeal is refused, thus the provision does not lead to an inference that there is no statutory remedy of an appeal against acquittal.

17. Section 142­A inserted by the Act of 26 of 2015 with effect from 15.06.2015, Sections 143 to Section 147 inserted by Act of 55 of 2002 with effect from 06.02.2003 and Sections 143­A and Section 148 have been inserted vide Act 20 of 2018 with effect from 02.08.2018 as well as some Sections from 138 to 148 of the Act of 1881 start with non­obstante clause which show overriding effect of these provisions over the general provisions of Code of Criminal Procedure. These provisions deviate from the general law with regard to the cognizance of offences, summary trial, mode of service of summons, evidence on affidavit, compounding of offences, interim compensation, etc. Even the 'mens rea' is excluded as a necessary ingredient of the offence under Section 138 of the Act of 1881.

18. It is worthy to mention that peculiarity of the offence under Section 138 of the Act of 1881, is that this offence has been created by way of legal fiction. The wordings employed in the said provision reads thus '…..... such person shall be deemed to have committed an offence.......'. In interpreting a provision creating a legal fiction, it is well settled that the court is to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences which are incidental or inevitable corollaries for giving effect to the fiction. But in so construing the fiction it is not to be extended beyond the purpose of which it is created, or beyond the language of the section by which it is created.

19. In the case of Rajkumar Khurana Vs. State of (NCT of Delhi) reported at (2009) 6 SCC 72, it is held that Legal fiction cannot be taken recourse to for any purpose other than one mentioned in the statute. A penal provision created by a legal fiction must receive strict construction.

20. Looking to the object and purpose for introducing Section 138 and allied provisions in the Act of 1881, the offence of dishonour of cheque cannot be viewed with the same lenses at par with the penal provisions involving mens rea. Generally, crime is treated as a wrong against the society. It is a public wrong. State has to play a major role even though the prime sufferer is the victim of the crime. However, the same is not a position with the offence under Section 138 of the Act of 1881. Here, the State has no role to play at all. The purpose is to recover the amount as mentioned in the cheque and not to send the accused in jail for the commission of offence. The law permits compounding of offence at any stage, even after conviction and the result of compounding would be an acquittal/ discharge of the accused.

21. On the other hand, in cases other than Section 138 Negotiable Instruments Act, the victim has to be contended with the punishment to the wrongdoer. However, for most of the times, the criminals get acquittal for one or the other reasons. The victim had no role to play at all. The purpose of bringing proviso to section 372, as stated earlier, was only to make victim of the crime active and authoritative. The definition of the 'victim' which was added simultaneously alongside the proviso to section 372 in the Code, is to be read for construing its meaning in the provisions of the Code only and cannot be stretched for the purpose of the Act of 1881, in the absence of any express provision in this regard.

22. The right of appeal, being a statutory right, cannot be assumed unless expressly provided by the statute. The right of appeal is created by way of substantive provision in the statute. The Code of Criminal Procedure, though considered as a procedural law, it is a substantive law as far as right of appeal is concerned. For the purpose of trial of the offence under section 138 of the Act of 1881, as per Section 4(2) of the Code, the provisions in the Code are applicable. For the purpose of appeal against the order of conviction or the order of acquittal in a case instituted on private complaint, the remedy of appeal is already provided in the Code. Only on the basis of definition of 'victim' which came to be inserted by way of amendment in the year 2009 with avowed object in mind alongside the creation of right of appeal to the victims of crime, the same cannot be usurped for the purpose of offence under section 138 of the Act of 1881, unless expressly provided.

23. In this view of the matter, the complainant of the offence under Section 138 of the Act of 1881, to whom the remedy of appeal against an order of acquittal to the High Court under Section 378(4) of the Code is already provided, cannot take recourse to proviso inserted to section 372 of the Code under the guise of the term 'victim' as used in the newly inserted proviso to section 372 of the Code. Here, the purpose for insertion of the said proviso was certainly not to provide additional remedy to the complainant in complaint cases under section 138 of the Act of 1881.

24. Furthermore, it was certainly not the object of the legislature to confer concurrent jurisdiction to the High Court under Section 378(4) and to the Sessions Court under proviso to Section 372 of the Code to hear appeals against the order of acquittal in section 138 of the Act of 1881 cases. In addition to the remedy under Criminal law, as stated earlier, the payee or the holder in due course has an additional remedy under Civil law. Both can be invoked simultaneously.

25. As per the settled legal principles, the rules of interpretation require that the provisions in any enactment are to be read in conformity with each other and not in derogation to each other. In order to give effect to one provision, the other provision shall not get nullified. The special provision always prevails over the general provision as rightly submitted by learned counsel for the appellant while relying on the case of Motiram Gheelabhai through LR Vs. Jagan Nagar, reported at (1985) 2 SCC 279, wherein it is held that under the normal rule of interpretation, the special provision must prevail over the general and if the case is covered by the special provision the general provision will not be attracted to it.

26. Section 372 of the Code is a general provision regarding appeals with wordings 'no appeal shall lie from any judgment or order of a Criminal Court except as provided by this Code or by any other law for the time being in force'. Sections 373, 374, 377, 378, 379 and 380 of the Code provide for remedy of appeal to the accused, the State and the complainant under different situations. Prior to insertion of proviso to section 372, there was no right of appeal available to the victim of the crime, who is considered to be the prime sufferer. Insertion of proviso to section 372 of the Code, here, does not mean that it has been added only as an exception to Section 372 of the Code. It is a substantive provision creating substantive right in favour of the victim to file an appeal against the order of acquittal or conviction for a lessor offence or imposing inadequate compensation.

27. In the case of Subhash Chand vs. State (Delhi Administration) reported at (2013) 2 SCC 17, it has been held that once a case is instituted on a complaint and an order of acquittal is passed, whether the offence be bailable or nonbailable, cognizable or non­cognizable, the complainant can file an application under Section 378(4) of the Code of Criminal Procedure for Special Leave to Appeal against an order of acquittal of any kind only in the High Court.

28. In the case of Balasaheb Rangnath Khade & Ors. Vs. State of Maharashtra & Ors. reported at 2012 (3) Bom. C.R. (Cri.) 632], the Single Bench of this Court in paragraph Nos. 49, 50 and 57, it has been observed as under:­
“49. The victim in a private complaint is in a diametrically position. That is the victim who has prosecuted the private complaint as a complainant. He/she was in control of the criminal prosecution. He/she decided who would be his/her witnesses and after a full and unfettered prosecution his complaint came to be rejected by an acquittal of the accused. Upon such complaint, filing the appeal under Section 378(4) would then require special leave from the High Court to appeal. That would be the leave granted to that complainant which would give the complainant a second opportunity to prosecute his case.
50. It would be, therefore, too myopic a view to say that the private complainant could be placed on par with the first informant. These complainants come from wholly different worlds. They set the wheels of (22) Cr. Appeals 991, 992, 331 & 854/11 justice moving in wholly different spheres. Whereas one stands on his own feet and is in control of his proceeding, the other is left to the vagaries of the investigating agency and the prosecuting agency. There is nothing he/she can do in the investigation; there is little he/she can do in a prosecution. The only place he/she could be heard is in the appeal so far.
57. The question whether a private complainant would take recourse to the provision to Section 372 is not threatening. A complainant in a private complaint, even if he/she has been the victim of the offence, would not fall under the said proviso as a victim since the appeal to be filed by him has been separately contemplated under the specific provision being Section 378(4). Hence though describing him as a victim, which inclusive definition came to be incorporated in the Criminal Procedure Code only alongside the incorporation of the proviso to Section 372, it would apply only to those who fall within the proviso. The complainant in a private complaint would not be able to avoid the scrutiny of the Court for being granted the leave contemplated in Section 378(4) which provision stands.”

29. In the case of Smt. P. Vijaya Laxmi Vs. Smt. S.P. Sravana & Anr., 2018 Cri. L.J. 1338, the Division Bench of the Hyderabad High Court in paragraph No. 52 has held as under:­
“52. Therefore, even as on the date of amendment of the Code vide the Act No.5 of 2009, a complainant in a case arising out of a private complaint had the right to prefer an appeal to the High Court against acquittal therein, with special leave. As rightly pointed out, it cannot be presumed that the legislature was unaware of the existing appellate remedy while creating a right of appeal in favour of a victim, by inserting Section 2(wa) in the Code along with a proviso to Section 372 thereof. Had it been the intention of the legislature to provide dual remedies to such a complainant by allowing him to come within the ambit of a victim under Section 2(wa) and avail the right of appeal under the proviso to Section 372, express mention would have been made of the same. Be it noted, Section 397 of the Code specifically confers upon an aggrieved party the right of revision either before the Sessions Court or before the High Court and once the remedy of revision is invoked before either of the aforestated fora, a further revision would not lie thereunder to the other forum.”

30. In the case of Selvaraj Vs. Venkatachalapathy, decided on 04.08.2014 in Criminal Appeal No. 20 of 2014, the Madras High Court opined that victim in Section 372 proviso would not include a complainant in a complaint case and the term victim used in the said proviso should be confined only to victims in cases instituted otherwise than on a complaint.

31. In the case of M/s. Top Notch Infotronix (I) Pvt. Ltd. Vs. M/s. Infosoft Systems, reported at 2011 (6) Mh. L.J., the learned Single Judge of this Court opined that Section 372 proviso does not, in any manner, affect the provisions of Section 378(4) of the Code which deals with an appeal against the order of acquittal in a case instituted upon a complaint. It was held that against acquittal in a case instituted by a complainant under Section 138 of the Act of 1881, an appeal would only lie to the High Court under Section 378(4).

32. Moreover, prior to the Amendment Act 25 of 2005, all appeals against acquittal used to lie before the High Court. Act of 25 of 2005 brought changes to Section 378(1) of the Code to the effect that all appeals against the order of acquittal passed by the Court of Magistrate in case of cognizable and non­bailable offence shall lie to the Court of Sessions where appeals against the order of conviction lie. The purpose of the said amendment is stated to be to guard against arbitrary exercise of power and to reduce reckless acquittals. However, while amending Section 378(1) of the Code, Section 378(4) has been kept intact which shows legislature's intention not to disturb the said provision. Prior to Amendment of 2005, there used to be only one remedy against an order of acquittal passed by the Magistrates in cases initiated on police reports i.e. appeal before the High Court. The reason might be based on the principle that the acquittal of the accused by the court reinforces the principle of innocence of the accused. Even the Amendment of 2005 did not touch less serious offences. For bailable and non­cognizable offences, the Appeals against the order of acquittals still lie to the High Court. The appeal against the order of acquittal in a case instituted on private complaint also lies to the High Court. It appears, for petty and less serious offences, there are less number of further remedies. The offence punishable under Section 138 of the Act of 1881, being of quasi civil in nature and being considered as a petty and less serious offence, cannot be given the same treatment as is given to the offences under Penal Code or other enactments involving mens rea as a necessary ingredient. This may be another ground to reject the argument that the appeal against acquittal in cheque bouncing cases shall lie to the Sessions Court under 'proviso' to Section 372 of the Code.

33. As such, different High Courts have taken the same view.

34. Full Bench of Madras High Court, however, in the case of S. Ganapathy Vs. N. Senthilvel , reported at 2017 CRI. L.J. 602, has held that victim of a crime, who has prosecuted an accused by way of a private complaint, has a statutory right of appeal within the limits prescribed under Section 372 of the Code of Criminal Procedure. This view, for the aforesaid reasons is not acceptable.

35. Coming back to the referral order and on considering the facts and law referred above, we find that the view taken by the learned single judge in Shantaram s/o Laxman Tande vs. Dipak s/o Madhav Gaikwad (supra) is the correct view. The observation of the Apex Court in Mallikarjun Kodagali (Dead) Represented through Legal Representatives vs. State of Karnataka & others, (supra) as set out by the learned referral Judge, is not in the context of the question under reference. The question before the Apex Court as well as before the Larger Bench of the Gujarat High Court in Bhauvuban Dineshbhai Makwana vs. State of Gujarat & Ors., (supra) was if leave was required to be obtained if an appeal against an order of acquittal is preferred by the victim under the proviso to section 372 of the Code. The larger Bench of the Gujarat High held that if the victim also happens to be the complainant and the appeal is against acquittal, he/she is required to take leave as provided in Section 378 of the Code but if he/she is not the complainant, he is not required to apply for or obtain any leave. To this, the Apex Court observed that Gujarat High Court made an artificial and unnecessary distinction between a “victim as a victim” and “victim as a complainant” in respect of filing an appeal against an order of acquittal. This observation of the Apex Court, in our opinion, does not go against the view expressed by the single judge of this court in Shantaram s/o Laxman Tande vs. Dipak s/o Madhav Gaikwad (supra). The learned Single Judge opined that Section 378(4) of the Code is the exclusive provision which deals with the orders of acquittal passed in any cases instituted upon complaint and hence, the provision of Section 378(4) and amended proviso to Section 372 of the Code operate in two different areas separately.

36. In fact the Apex Court in the concluding para in the case of Mallikarjun Kodagali (Dead) (supra) held that the text of Section 378(4) of the Code is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint and this has nothing to do with the lodging or 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 Code is concerned. The concluding para 78 in the said judgment reads thus ­
“78. …......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 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.”

37. In the conspectus of the aforesaid discussion, we answer the question thus :
Answer : The appeal against acquittal in prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, would lie under Section 378(4) of the Code of Criminal Procedure.
Before parting with the judgment, we place on record our appreciation for Advocate Shri Palash K. Mohta, for the applicant and Advocate Shri Yash Maheshwari, for the respondent, who have ably assisted the Bench in answering this reference.

Order accordingly.