"Appeal Cannot Be Denied Based on Technicalities": Karnataka High Court Sets Aside Acquittal Order Dismissal and Remands Case for Reconsideration
Kiran Raj
The Karnataka High Court has set aside the dismissal of an appeal against acquittal in a cheque bounce case, observing that the appellate court’s decision to reject the appeal as "not maintainable" was inconsistent with statutory provisions. The court stated, “The order passed by the appellate Court in dismissing the appeal as not maintainable, cannot be sustained.”
The matter was heard by Justice S Rachaiah, who remanded the case to the appellate court for fresh consideration and directed it to dispose of the matter within six months. The court further ordered that notices be issued to all concerned parties and that they be allowed to appear either personally or through their counsel.
The revision petition was filed by the petitioner challenging the judgment dated May 4, 2016, passed in Crl.A.No.166/2013 by the VIII Additional District and Sessions Judge, Mysuru sitting at Hunsur. The appellate court had dismissed the appeal against the acquittal order passed by the Civil Judge and JMFC, Periyapatna, in C.C. No. 106/2007 dated May 16, 2013.
The petitioner, Thomas Mani, contended that his appeal should have been entertained, as he had the right to challenge the acquittal under the law. The respondent, G. Shankar, opposed the petition, arguing that the dismissal of the appeal was justified.
The appellate court had relied on a judgment of a coordinate bench of the Karnataka High Court in Crl.P.No.6074/2014, holding that a complainant under Section 142 of the Negotiable Instruments Act, 1881 (N.I. Act) and a victim under Section 2(wa) of the Code of Criminal Procedure (Cr.P.C.) were distinct and that the complainant could not file an appeal against acquittal. Based on this reasoning, the appellate court had dismissed the appeal as not maintainable.
The Karnataka High Court examined the legal provisions governing appeals against acquittal and recorded that the appellate court had misinterpreted the applicable statutes. The court referred to Section 378 of the Cr.P.C., which outlines the procedure for appealing against acquittals. It noted that:
"The word, ‘the complainant may present such appeal to the High Court’ would indicate that the complainant need not file an appeal against acquittal to the High Court directly where an appeal lies to the Sessions Court against order passed by the Trial Court or Magistrate.”
The court clarified that a complainant in a case under Section 138 of the N.I. Act is not precluded from filing an appeal against acquittal before the appropriate appellate court. It referred to the definition of "victim" under Section 2(wa) of the Cr.P.C., which states:
"‘Victim’ means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression ‘victim’ includes his or her guardian or legal heir.”
The judgment further addressed the right of victims to appeal under Section 372 of the Cr.P.C., which provides:
"No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code 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.”
The court noted that under these provisions, a victim has the right to challenge an acquittal order before the appropriate appellate court. It stated:
"On reading of the aforesaid provisions, it makes it clear that the victim can file an appeal against the order of acquittal before the Appellate Court or Sessions Court. Nowhere in the above said provisions mentioned about a particular case. The complainant or the victim can file an appeal as against the order of acquittal passed by the Magistrate before the Court an appeal ordinarily lies against the order of conviction of such Court.”
The judgment pointed out that in cases filed under Section 138 of the N.I. Act, appeals against conviction are ordinarily filed before the Sessions Court. Consequently, the appellate court’s view that the complainant could not file an appeal before it was incorrect. The court recorded:
"The above said definition would indicate that if any orders of conviction passed by the Magistrate Court, an appeal shall lie before the Sessions Court or Appellate Court. Similarly, in a case filed under Section 138 of N.I. Act, if conviction is passed, the appeal shall lie to the Sessions Court. Such being the fact, asking the complainant to file an appeal before this Court, in my considered view is not appropriate after enacting Section 372 of Cr.P.C."
Based on these observations, the court concluded that the dismissal of the appeal on grounds of maintainability was legally unsustainable.
The court set aside the appellate court’s judgment and remanded the matter for fresh consideration. It directed the trial court to issue notices to the respective parties and allow them to appear personally or through their counsel. The judgment stated:
"The revision petition is allowed."
"The judgment and order dated 04.05.2016 passed in Crl.A.No.166/2013 by the learned VIII Addl. District and Sessions Judge, Mysuru sitting at Hunsur is set aside and the matter is remanded to the Appellate Court for fresh consideration."
The court further directed:
"The Trial Court is directed to issue notice to the respective parties and fix a date for their appearance either personally or through their respective counsels."
Recognizing the time elapsed in pursuing the case, the court urged the appellate court to expedite the proceedings:
"Having considered the time elapsed in approaching this Court and also considering the date of filing of the complaint, it is appropriate to request the Appellate Court to dispose of the matter at the earliest not later than six months from the date of receipt of this order."
The Registry was instructed to transmit the records to the appellate court for immediate consideration.
Advocates Representing the Parties
For Petitioner: Syed Akbar Pasha, Advocate.
For Respondent: Suyog Herele E, Advocate.
Case Title: Thomas Mani v. G. Shankar
Neutral Citation: 2025:KHC:8113
Case Number: CRL.RP No. 851 of 2016
Bench: Justice S Rachaiah
[Read/Download order]
