Dismissal of complaint of dishonour of cheque.
What is the remedy for complainant in case of dismissal of complaint filed under section 138 of Negotiable Instruments Act?
To file an appeal under section 372 of Criminal Procedure Code, 1973 or to seek leave to appeal under section 378 of Cr.P.C.?
If the victim also happens to be the complainant and the appeal is against acquittal, he is required to take leave as provided in Section 378 of the Criminal Procedure Code but if he is not the complainant, he is not required to apply for or obtain any leave. For the appeal against inadequacy of compensation or punishment on a lesser offence, no leave is necessary at the instance of avictim, whether he is the complainantor not.
[Source: Bhavuben Dineshbhai Makwana vs. State of Gujarat, 2013Crl.L.J. 4225 (Guj)(FB)]
The complainant in a case under Section 138 of the Negotiable Instruments Act cannot challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the Cr.P.C. and his remedy is only to file an appeal to the High Court with special leave under Section 378 (4) Cr.P.C.
(Source: Shibu Joseph vs. Tomy K.J, ILR 2013 (4) Ker.866)
Thus the remedy available to the complainants under Section 138 N.I. Act against order of acquittal is only to seek special leave before filing an appeal under Section 378 (4) Cr.P.C. before the High Court. In the instant case, the appellant has not sought any such leave. Consequentially the appeals filed by the appellant are dismissed as not maintainable.