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Cheque bounce Case (Altered presumption of acquittal by sessions court)

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Cheque bounce Case (Altered presumption of acquittal by sessions court)

Cheque bounce Case (Altered presumption of acquittal by sessions court)

Now let’s alter the presumption. Presumption here is that Sessions court has acquitted the individual after he was convicted by the trial court. In case of acquittal by session court, section 378 of CrPC will come into play. Under sub-section 4, a private individual may by an application made to HC ask for grants special leave […]

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Now let’s alter the presumption. Presumption here is that Sessions court has acquitted the individual after he was convicted by the trial court. In case of acquittal by session court, section 378 of CrPC will come into play. Under sub-section 4, a private individual may by an application made to HC ask for grants special leave to appeal from the order of acquittal, and if HC allows, the complainant may present such an appeal to the High Court. It is a well-accepted principle and has been observed in multiple cases.

Subhash Chand vs State(Delhi Administration):

In this case court made observation that the “…Whether a case is a case instituted on a complaint depends on the legal provisions relating to the offence involved therein. But once it is a case instituted on a complaint and an order of acquittal is passed, whether the offence be bailable or non-bailable, cognizable or noncognizable, the complainant can file an application under Section 378(4) for special leave to appeal against it in the High Court. Section 378(4) places no restriction on the complainant. So far as the State is concerned, as per Section 378(1)(b), it can in any case, that is even in a case instituted on a complaint, direct the Public Prosecutor to file an appeal to the High Court from an original or appellate order of acquittal passed by any court other than High Court….”

Other cases reiterating the same include (Though it was not the ratio of the case):

 M.Ramamurthy vs N.A.Ramakrishnan

 State Of M.P. vs Chandrabhan Heeralal Yadav

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3 Comments

  1. A case was instituted against accuse in the trial court u/s 138 of negotiable instruments act (hereinafter NIA). Trial court acquitted the accused. However he was convicted by the session court. What course of action lies ahead for the complainant?

    Proceedings u/s 138 of NIA are quasi criminal in nature.[1] Under 138 both a criminal complaint can be filed for dishonoring of a Cheque and a civil suit for recovery. Here, we are only concerned with the criminal aspect of offence u/s 138 NIA.

    Hence, essentially we have to consider difference between revision application and appeal to a HC when criminal cases have been decided in session court. (Only the differences material to determining the issue have been considered)

    Revision

    It is only a privilege. An aggrieved party may move to the HC for exercising its power to revision. However, the power is discretionary in nature and it’s up to the HC to decide whether it will accept revision petition or not.[2]
    Allowing for revision is a discretionary power of the court.[3]
    Revision can lie only on the ground of jurisdiction, and the High Court in exercise of its revisional jurisdiction is not a court of appeal on a question of law or fact.[4]
    Superior court can suo moto take undertake revision.
    In case of a revision, whatever powers the revisional authority may or may not have; it does not have the power to review the evidence unless the statute expressly confers on it that power.[5]
    Appeal

    It is a substantive right given by a statute. [6]
    Appeal only lies in a case if it is explicitly provided for by the statute.[7]
    In an appeal the court has the power to decide both questions of fact and law.[8]
    Procedure under appeal can only be undertaken after application for the same is made to the court.
    An appeal is continuation of the proceedings. In effect, the entire proceedings are before the appellate authority and it has power to review the evidence subject to the statutory limitations prescribed.[9]
    Only one of the two is allowed:

    The above mentioned distinctions have to be presumed for real and have to be applied. Hence, if legislature has created the two i.e. appeal and revision, and considering the fact that the two are distinct, only one of the two course of actions can be undertaken in a certain case.[10] Further, section 401 (4) of CrPC states that, “Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.” Hence, only either revision or appeal is allowed. Section 401 (5) of CrPC further supports this notion. Another point to be considered is that revision lies only in cases where appeal does not lie.

    Conclusion:

    In the current case maximum imprisonment under section 138 of NIA is 2 years. Hence, under section 374 (2) appeal to the HC will not be allowed. This is so because for the appeal to be allowed punishment given by session court has to be more than 7 years. Consequently, this becomes a case for revision under section 397. (Please check whether under which section revision may be asked for. Not sure whether section 397 is the one under which revision may be allowed)

    Thus, the accused in this case can file an application for revision in the HC.

    __________________________________________________________________

    [1] AIR 2007 (DOC) 264 (DEL.) – Delhi HC when it was dealing with whether outside the court settlement should be allowed in cases of Cheque bounce?

    [2] State of Kerala v. K.M. Charia Abdullah & Co., (1965) 1 SCR 601, 604 : AIR 1965 SC 1585.

    [3] S. 397, s. 398 and s. 401 of CrPC.

    [4] Hari Shanker v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698 : 1962 Supp (1) SCR 933.

    [5] State of Kerala v. K.M. Charia Abdidla & Co., A.I.R. 1965 S.C. 1585; Lachhman Dass v. Santokh Singh, (1995) 4 SCC 201.

    [6] State of Kerala v. K.M. Charia Abdullah & Co., (1965) 1 SCR 601, 604 : AIR 1965 SC 1585.

    [7] S. 372 CrPC. In this case Appeal does not lie because of the provisions of s. 374 (2) CrPC\ as under this section an appeal cannot be made to the HC until punishment given by sessions court is not more than 7years.

    [8] Hari Shanker v. Rao Girdhari Lal Chowdhury, AIR 1963 SC 698 : 1962 Supp (1) SCR 933

    [9] State of Kerala v. K.M. Charia Abdidla & Co., A.I.R. 1965 S.C. 1585; Lachhman Dass v. Santokh Singh, (1995) 4 SCC 201

    [10] State of Kerala v. K.M. Charia Abdullah & Co., (1965) 1 SCR 601, 604 : AIR 1965 SC 1585

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