An appeal against the order of conviction in a cheque dishonour case under Section 138 of the Negotiable Instruments Act can be filed in the Court of Session under the provisions of Section 374(3) of the Criminal Procedure Code. Section 374 of Cr.P.C. is as under:
“374. Appeals from convictions.— (1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial, may appeal to the High Court.
(3) Save as otherwise provided in sub-section (2), any person,—
(a)convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or
(b)sentenced under Section 325, or
(c)in respect of whom an order has been made or a sentence has been passed under Section 360 by any Magistrate,
may appeal to the Court of Session.”
For an appeal against acquittal in a case under Section 138 of the N.I. Act, two situations may arise. Firstly, if the appeal against acquittal is to be filed by the victim of the cheque dishonour case, then the appeal may be filed in the Court of Session under the Proviso to Section 372 (however, in such a situation, leave to appeal may first have to be obtained from the High Court under Section 378 of the Cr.P.C., as held in certain judgments), which is as under:
“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.”
Secondly, if the appeal against acquittal is to be filed by the complainant, who is not the victim, then it can be filed under the provisions of Section 378(4) of Cr.P.C., which is as under:
“(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.”
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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