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
The text of Section 378(4) of the Code of Criminal Procedure(hereinafter referred as ”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 Bombay High Court passed the above-mentioned reasoning in the matter of Kushal K. Singanjude vs. Ramnarayan D. Agarwal [Cr. Appl.(A) No. 2018/2018], pronounced on 23.08.2019.
Challenge:
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?
Held:
While adverting to decide the question under reference the Hon’ble Court consider the object of remedy introduced under section 138 of Negotiable Instrument Act, 1881(hereinafter referred as “the Act”). Sections 138 to 142 was added in the Act, 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.
The offence under Section 138 of the Act is not committed on the date of issuance of the cheque, rsther on the date of its dishonor. Section 139 of the Act 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.
The Bench observed the scheme of the provisions contained in the new Chapter XVII of the Act 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.
Drawing the difference in the nature of complaint under section 138 of the Act from the complaint mentioned under Section 372 of the Code, the Bench held that under section 138 of the Act 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 non-cognizable. 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 the Act.
Section 2(wa) and proviso to Section 372 of the Code 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. 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. 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 aforesaid fora, a further revision would not lie thereunder to the other forum. This situation not at all to cover where the complainant is of a private nature under Section 138 of the Act.
While concluding the judgement the Bench observed 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 offence punishable under Section 138 of the Act 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.