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2009(1) Crimes 164 (SC)
SUPREME COURT OF INDIA
Dr. Arijit Pasayat and Dr. Mukundakam Sharma, JJ.
Mohindra Hire Purchase — Appellant
versus
Jarnail Singh — Respondent
Criminal Appeal No. 810 of 2003
Decided on : 01-12-2008
For the Appellant :Rajat Sharma, Dinesh Tiwari and A.P. Mohanty, Advocates.
IMPORTANT POINT
One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out.
Headnote:Code of Criminal Procedure, 1973 – Section 378(4) – Complaint filed by appellant u/s 138 of NI Act alleging dishonour of cheques issued by respondents – Said Complaint Case was dismissed by Chief Judicial Magistrate – Petition thereagainst under Section 378 (3) of Code, seeking leave to file appeal –Dismissed by High Court – Appeal – Plea of appellant that order passed was a cryptic one and no reasons had been indicated for not granting leave to file an appeal – Held Trial Court was required to carefully appraise entire evidence and then come to a conclusion – If the Trial Court was at lapse in this regard High Court was obliged to undertake such an exercise by entertaining appeal – High Court ought to have in such circumstances granted leave and thereafter as a first court of appeal, re-appreciated the entire evidence on the record independently and returned its findings objectively,as regards guilt or otherwise of the accused – However High Court failed to do so – The questions involved were not trivial – High Court not gave any reasons for refusing to grant leave to file appeal against acquittal, completely oblivious to fact that by such refusal, a close scrutiny of order of acquittal, by appellate forum, had been lost once and for all – The manner in which appeal against acquittal had been dealt with by the High Court left much to be desired – Reasons introduce clarity in an order – On the plainest consideration of justice, High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order was amenable to further avenue of challenge – Absence of reasons rendered High Court order not sustainable – Instantly High Court ought to have granted leave – Appeal allowed. (Paras 5 to 8)
(2001 (10) SCC 607, AIR 1982 SC 1215, 1987 (2) SCC 222) – Relied upon.
Facts of the Case :
1. A Complaint was filed by appellant u/s 138 of NI Act herein in the instant case alleging dishonour of cheques issued by respondents. Said Complaint Case was dismissed by Chief Judicial Magistrate. Petition thereagainst under Section 378 (3) of Code, seeking leave to file appeal was dismissed by High Court.
2. Present appeal has been filed against said order of High Court.
Findings of the Court :
High Court ought to have in such circumstances granted leave and thereafter as a first court of appeal, re-appreciated the entire evidence on the record independently and returned its findings objectively,as regards guilt or otherwise of the accused. However High Court failed to do so.The questions involved were not trivial. High Court not gave any reasons for refusing to grant leave to file appeal against acquittal, completely oblivious to fact that by such refusal, a close scrutiny of order of acquittal, by appellate forum, had been lost once and for all.The manner in which appeal against acquittal had been dealt with by the High Court left much to be desired. Absence of reasons rendered High Court order not sustainable.
Result : Appeal allowed.
Dr. Arijit Pasayat, J. —
1. Challenge in this appeal is to the judgment of a Division Bench of the Punjab and Haryana High Court dismissing the application filed by the appellant in terms of Section 378(4) of the Code of Criminal Procedure, 1973 (in short the ‘Code’). Appellant had lodged a complaint alleging that cheques issued by the respondents were not honoured by the Bank and inspite of service of notice to the respondent demanding repayment of loan amount, the respondent failed to pay the amount. A complaint under Section 138 of the Negotiable Instruments Act, 1881 (in short the ‘Act’) was filed before the learned Chief Judicial Magistrate, Jalandhar, in Complaint Case no.61 of 1998. The said Complaint Case was dismissed by the learned Chief Judicial Magistrate. As noted above, petition in terms of Section 378 (3) of the Code was filed, seeking leave to file appeal before the High Court, which by the impugned judgment dismissed the same.
2. Learned counsel for the appellant submitted that the order passed was a cryptic one and no reasons have been indicated for not granting leave to file an appeal.
3. There is no appearance on behalf of the respondent in spite of service of notice.
4. According to learned counsel for the appellant it was imperative on the High Court to indicate reasons as to why the prayer for grant of leave was found untenable. In the absence of any such reasons the order of the High Court is indefensible. Section 378(3) of the Code deals with the power of the High Court to grant leave in case of acquittal. Section 378 of the Code reads as follows:
“378. Appeal in case of acquittal. (1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5) -
(a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special police Establishment Act, 1946 (25 of 1946) or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal -
(a) to the Court of Session, from an order of acquittal passed by a Magistrate, in respect of a cognizable and non-bailable offence;
(b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.
(3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.
(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.
(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal fro
