The Madras High Court has recently held that the appeal against acquittal of the accused in a cheque bounce case can only be filed before the High Court under Section 378(4) of Cr.PC.
Holding that the decision of another full bench in S.Ganapathy V. N.Senthilvel ((2016) 4 CTC 119) is ‘per incuriam’. The full benchbench comprising of Justices MM Sundresh, V Bharathidasan and N. Anand Venkatesh observed:
“As against an order of acquittal passed by a Magistrate on a complaint, an appeal will lie only before the High Court, under Section 378 (4) of Cr.PC. In such cases, the complainant has to seek for Special leave under Section 378 (5) of Cr.PC. The decision rendered in S.Ganapathi case is declared as a judgement per-incuriam, since it has been decided without reference to the binding authority in DamodarS.Prabhu and Subash Chand.”
It was held in S. Ganapathy that the appeal by the complainant against an order of acquittal because of cheque bounce is maintainable before the Court of Sessions under the proviso to Section 372 of the Criminal Procedure Code. Doubting the correctness of this view, a single bench had referred the case to the larger bench as to whether the remedy lies as against an order of acquittal passed by a Magistrate on a complaint whether it is under proviso to Section 372 of the Criminal Procedure Code or under Section 378(4) of Criminal Procedure Code?
Relying on the Supreme Court judgments in Damodar S. Prabhu V. Sayed Babalal H. ((2010) 5 Supreme Court Cases 663) [Subash Chand Vs. State (Delhi Administration)] 2013 2 SCC 17 and MallikarjunKodagali (Dead) Represented through Legal Representatives V. State of Karnataka ((2019) 2 Supreme Court Cases 752), the court observed that the decision rendered in S.Ganapathi case is per-incuriam.
The bench also clarified in the case of acquittal for cheque bounce that the impact of this decision on the cases decided by the Courts pursuant to the decision in S.Ganapathy’s case, and the Registry transferred all the pending appeals to the Courts of Sessions
- An appeal which was pending before this Court and which was remanded to the Sessions Court pursuant to S.Ganapathi (Supra) and the same is pending, the same should be transferred back to the file of the High Court and should be considered to be pending before the High Court. The same effect will be given even for cases where the original appeal was filed before the Sessions Court and is pending.
- In cases where the Sessions Court has confirmed the order of acquittal passed by the Magistrate and a revision petition has been filed before this Court by the complainant and the same is pending, the order of Sessions Court must be disregarded and the revision petition filed before this Court by the complainant must be treated as an Appeal by virtue of Section 401(5) of Cr.PC. Those revision petitions must be renumbered as Criminal Appeals by the Registry.
- In cases, where, the order of acquittal has been confirmed by the Sessions Court and it has not become final or it has not been acted upon by the parties and the complainant wants to challenge the same, he shall file a Criminal Appeal before this Court against the order passed by the Magistrate, disregarding the order passed by the Sessions Court, within the limitation period prescribed for filing Appeal and which shall be calculated from the date on which the Sessions Court order was made ready. In such cases, the complainant has to seek for a Special leave under Section 378 (5) of Cr.PC.
- In cases, where, the Sessions Court has reversed the order of acquittal passed by the Magistrate and the same has been challenged by the accused before this Court by way of revision petition and the same is pending, the same should be treated as an Appeal pending before this Court against the order of Acquittal passed by the Magistrate, by disregarding the order passed by the Sessions Court. In all those cases, the complainant must file a transpose petition and the Registry must convert the same as Criminal Appeals by showing the complainant as the Appellant and the accused as the respondent. The Memorandum of grounds of Criminal Appeal filed before the Sessions Court will be considered as the memorandum of grounds of appeal in the renumbered Criminal Appeal.
- In cases, where the Sessions Court has reversed the order of acquittal passed by the Magistrate and convicted the accused and this order has not become final or the same has not been acted upon, the accused person has to necessarily challenge the said order by filing a criminal revision petition before this Court by quoting this Full Bench judgement. After notice is served on the complainant and he enters appearance, the same should be treated as an Appeal pending before this Court against the order of Acquittal passed by the Magistrate, by disregarding the order passed by the Sessions Court. In all those cases, the complainant must file a transpose petition and the Registry must convert the revision as Criminal Appeal by showing the complainant as the Appellant and the accused as the respondent. The Memorandum of grounds of Criminal Appeal filed before the Sessions Court will be considered as the memorandum of grounds of appeal in the renumbered Criminal Appeal.
- In all those cases, where, either after remand or by means of filing, an Appeal has been finally decided by the Sessions Court and the same has not been challenged or it has been acted upon, the order passed by the Sessions Court will be final inter-partes and it cannot be re-opened by virtue of this judgement.
- In all those cases, where, the order of the Sessions Court was put to challenge before this Court, either by the complainant or by the accused, as the case may be, and final orders have been passed by this Court and it has become final inter-partes or has been acted upon, it cannot be re-opened by virtue of this judgement.
While writing a concurring judgment Justice Anand Venkatesh noted that 13 High Courts have held that a complainant can file an Appeal against acquittal only before the High Court under Section 378 (4) of Cr.PC.
