KUSHAL KAWADUJI SINGANJUDE Vs. RAMNARAYAN DURGAPRASAD AGRAWAL

JUDGEMENT

(1.) This Bench has been constituted by the directions of Hon'ble the Chief Justice to decide the undermentioned question which has been referred for consideration by the Single Bench of this Court by an order dated 30.10.2018. The question reads thus:

(2.) The occasion to refer the aforesaid question for consideration arose when there was an issue before the Court about maintainability of an appeal under Section 378(4) of the Code of Criminal Procedure, 1973 (for short 'Code') in a case initiated on a private complaint u/s 138 of the Negotiable Instruments Act, 1881 (for short 'Act of 1881'). The learned counsel Shri P.K. Mohta for the appellant referred judgment of this Court in the case of Shantaram s/o Laxman Tande vs. Dipak s/o Madhav Gaikwad, 2011 AllMR(Cri) 3473 in support of his argument on maintainability of appeal u/s 378(4) of the Code. In the said judgment, the learned Single Judge of this court took a view that the provisions of Section 378(4) of the Code and the proviso below Section 372 of the Code, operate in distinct areas. It is further recorded that the remedy under Section 378(4) of the Code will be available to the complainant in cases instituted upon private complaint and as per proviso below Section 372 of the Code, right of appeal will be available to the 'victim' in police cases where the State avoids or fails to file the same.

(3.) The learned referral Judge relied on the judgment of the Hon'ble Apex Court in the case of Mallikarjun Kodagali (Dead) Represented through Legal Representatives vs. State of Karnataka & others, 2019 2 SCC 752, wherein their Lordships have taken a view that in the case of Bhauvuban Dineshbhai Makwana vs. State of Gujarat & Ors., Gujarat High Court has made an artificial and unnecessary distinction between the "victim as a victim" and "victim as a complainant" in respect of filing of an appeal against an order of acquittal and proviso to Section 372 of the Code of Criminal Procedure does not introduce or incorporate any such distinction.