AJAY TRADERS, Through Proprietor – Complainant Pyarelal Patidar, aged about 42 Years, S/o Mr. Bhagirath , Occupation – Business, R/o Shyampur, Post Shyampur, District – Sehore - 466 651 (Madhya Pradesh). Idea : 9165695095

IN THE HIGH COURT OF JUDICATURE OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR

MISCELLANEOUS CRIMINAL CASE NO. 4628 OF 2019

APPLICANT/            :       AJAY TRADERS

VERSUS

NON-APPLICANT/   :       Jwala Prasad Deshwali

I N D E X

S. No.	Description of documents	Annexure	Pages
1.	Index		1
2.	Memo Of Petition Under Section 378 (III) Of The Code Of Criminal Procedure, 1973 (No. 2 Of 1974) For Grant Of Leave To Appeal		2 TO 15
3.	List of documents		16
4.	Copy of Judgment of Conviction and Order of Sentence dated 06.09.2013 passed by the Court of Judicial Magistrate, First Class, Mr. Ayaz Mohammed, District – Sehore (Madhya Pradesh) in the matter of Ajay Traders V/s Jwala Prasad in the file of Regular Criminal Trial No. 210 of 2009, {Filing No.233301001972009/ Filing Date 04.02.2009}	A-1	17 TO 21
5.	Certified Copy of Judgment and Order dated 29.12.2018 passed by the Court of Mrs. Smrita Singh Thakur, IIIrd Additional Session Judge, District – Sehore - 466 651 (Madhya Pradesh) in the matter of Jwala Prasad Deshwali V/s Ajay Traders in the file of Criminal Appeal No. 309 of 2013, {Filing No.233301038592013/ Filing date 02.08.2017}	A-2	22 TO 26
6.	Vakalatnama		27
7.	Court Fee		28

PLACE : JABALPUR                   

DATE :                             ADVOCATE FOR APPLICANT

IN THE HIGH COURT OF JUDICATURE OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR

MISCELLANEOUS CRIMINAL CASE NO. 4628 OF 2019

APPLICANT/            :       AJAY TRADERS, Through Proprietor –

Complainant                       Pyarelal Patidar, aged about 42 Years, S/o Mr. Bhagirath , Occupation – Business, R/o Shyampur, Post Shyampur, District – Sehore - 466 651 (Madhya Pradesh). Idea : 9165695095

VERSUS

NON-APPLICANTS/:1.      Jwala Prasad Deshwali, Aged about 47

Accused                            years, W/o Mr. Chaturbhuj Deshwali, Occupation – Agriculturist, R/o Bamuliapura, Post -Sonthi, Tahsil – Shyampur, District – Sehore - 466 651 (Madhya Pradesh).

2.     The State of Madhya Pradesh through the Collector, District – Sehore - 466 651 (Madhya Pradesh).

PETITION UNDER SECTION 378 (4) OF THE CODE OF CRIMINAL PROCEDURE, 1973 (NO. 2 OF 1974) FOR GRANT OF LEAVE TO APPEAL

Being aggrieved by the Judgment and Order dated 29.12.2018 passed by the Court of Mrs. Smrita Singh Thakur, IIIrd Additional Session Judge, District – Sehore - 466 651 (Madhya Pradesh) in the matter of Jwala Prasad Deshwali V/s Ajay Traders in the file of Criminal Appeal No. 309 of 2013, {Filing No.233301038592013/ Filing date 02.08.2017}, arising out of Judgment of Conviction and Order of Sentence dated 06.09.2013 passed by the Court of Judicial Magistrate, First Class, Mr. Ayaz Mohammed, District – Sehore (Madhya Pradesh) in the matter of Ajay Traders V/s Jwala Prasad in the file of Regular Criminal Trial No. 210 of 2009, {Filing No.233301001972009/ Filing Date 04.02.2009}, the applicant/ complainant named above most humbly and respectfully begs to prefer this appeal on following facts and grounds amongst the others:

Material facts of the case

1.   In discharge of legally enforceable debt or liability the accused issued a Cheque No. 713777 dated 30.09.2008 Exhibit P-1 amounting to the tune of Rs. 2,00,000/-  of Oriental Bank of Commerce, Branch Sehore. The same was issued in lieu of friendly loan extended by complainant to accused in the month of June, 2008. The said cheque was deposited by the complainant in his bank account with State Bank of Indore, Branch Sehore. It was dishonored vide Bank Memo. The demand notice dated 17.12.2008 was sent to accused through the Registered post with Acknowledgement Due (RAD) so also through Under Postal Certificate (UPC). The accused neither replied the legal notice nor repaid the amount as demanded.  Hence the complaint was filed on 04.02.2009.

2.   Charges were framed under the provisions of Section 138 of the Negotiable Instruments Act, 1881 but the non-applicant pleads not guilty. While recording the statement under the provisions of Section 313 of the Code of Criminal Procedure, 1973 (No. 2 of 1974) the non-applicant stated that he have been falsely implicated in this case and have committed no offence. The Trial Court was pleased to kind enough in convicting the accused. Copy of Judgment of Conviction and Order of Sentence dated 06.09.2013 passed by the Court of Judicial Magistrate, First Class, Mr. Ayaz Mohammed, District – Sehore (Madhya Pradesh) in the matter of Ajay Traders V/s Jwala Prasad in the file of Regular Criminal Trial No. 210 of 2009, {Filing No.233301001972009/ Filing Date 04.02.2009}, is filed herewith and marked as Annexure A-1.

3.   Feeling aggrieved and dissatisfied with convocation and sentence, the accused preferred an appeal on 02.08.2017 under the provisions of Section 374 of the Code of Criminal Procedure, 1973 (No. 2 of 1974). The Court below mis-appreciating the evidence brought on record, acquitted the non-applicant on the strength of Milind Shripad Chandurkar v. Kalim M. Khan, AIR 2011 SC 1588 = (2011) 4 SCC 275. Certified Copy of the Judgment and Order dated 29.12.2018 passed by the Court of Mrs. Smrita Singh Thakur, IIIrd Additional Session Judge, District – Sehore - 466 651 (Madhya Pradesh) in the matter of Jwala Prasad Deshwali V/s Ajay Traders in the file of Criminal Appeal No. 309 of 2013, {Filing No.233301038592013/ Filing date 02.08.2017}, is filed herewith and marked as Annexure A-2. Hence this appeal on following grounds amongst the others :

Grounds urged :

A.   The Court below failed to appreciate that law laid down by the apex Court in the case of Milind Shripad Chandurkar v. Kalim M. Khan, AIR 2011 SC 1588 = (2011) 4 SCC 275, which is reproduced herein under :

 “Section 7 of the Act 1881 defines "Payee" as the person named in the instrument, to whom or to whose order the money is by the 
 instrument directed to be paid. Section 8 defines "the holder of the cheque" as any person entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. Section 9 defines "holder in due course" as any person who for consideration became the possessor of a cheque if payable to a bearer or the payee or endorsee thereof.

Section 138 provides for penalties in case of dishonour of certain cheques for insufficiency of funds in the accounts. However, exception contained in clause (c) thereof reads as under:

"The drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice." (Emphasis added)

19. Section 142 provides for taking cognizance of the offence notwithstanding anything contained in Cr.P.C. which reads as under:

"(a) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque." (Emphasis added)

20. This Court in Shankar Finance and Investments v. State of Andhra Pradesh & Ors., (2008) 8 SCC 536, dealt with the issue involved herein elaborately and held that where the "payee" is a proprietary concern the complaint can be filed (i) by the proprietor of the proprietary concern describing himself as the sole proprietor of the "payee"; (ii) the proprietary concern describing itself as the sole proprietary concern represented by its proprietor; and (iii) the proprietor or the proprietary concern represented by the Attorney Holder under the power of attorney executed by the sole proprietor.

However, it shall not be permissible for an Attorney Holder to file the complaint in his own name as if he was the complainant. He can initiate criminal proceedings on behalf of the principal.

In a case of this nature, where the "payee" is a company or a sole proprietary concern, such issue cannot be adjudicated upon taking any guidance from Section 142 of the Act 1881 but the case shall be governed by the general law i.e. the Companies Act 1956 or by civil law where an individual carries on business in the name or style other than his own name. In such a situation, he can sue in his own name and not in trading name, though others can sue him in the trading name. So far as Section 142 is concerned, a complaint shall be maintainable in the name of the "payee", proprietary concern itself or in the name of the proprietor of the said concern.

The Court placing reliance on earlier judgments, particularly, in Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217, held that the general principles of company law or civil law would apply for maintaining the complaint under Section 138 of the Act 1881.

21. In National small Industries Corporation Ltd. v. State (NCT of Delhi) & Ors., (2009) 1 SCC 407, this Court held as under:

"The term "complainant" is not defined under the Code. Section 142 of the NI Act requires a complaint under Section 138 of that Act to be made by the payee (or by the holder in due course)..."

22. Thus, in view of the above, the law stands crystallised to the effect that a person can maintain a complaint provided he is either a "payee" or "holder in due course" of the cheque”.

B.   The Court below ought to have appreciated that law laid down by the Apex Court in the case of Milind Shripad Chandurkar v. Kalim M. Khan, AIR 2011 SC 1588 = (2011) 4 SCC 275, which is as under :

“Ss. 138, 142 and 7 to 9 - Cheque payable to sole proprietary concern - Dishonour of - ``Payee'' - Who is - Locus standi to file complaint - Principles reiterated - Person if sole proprietor - Proof of - Appellant having failed to establish that he was proprietor of firm concerned, held, had no locus standi to file complaint under S. 138, (2011) 4 SCC 275-“

C.   The Court below erred in Law in not considering that the Supreme Court in the case BSI Ltd., and Another V. Gift Holdingings Pvt., Ltd., and Another (2000 SCC (Cri) 538 has held that:

“... A criminal prosecution is neither for recovery of money nor for enforcement of any security etc., Section 138 of the Negotiable Instruments Act is a penal provision the commission of which offence entails a conviction and sentence on proof of the guilt in duly conducted criminal proceedings. Once the offence under Section 138 is completed the prosecution proceedings can be initiated not for recovery of the amount covered by the cheque but for bringing the offender to penal liability”.

Again in the case of Gurcharan Singh V. State of U.P. and Another (2002 (4) Crimes 165 the Allahabad High Court has followed the above said Judgment of the Supreme Court.

D.  The Court below committed grave error and irregularity in not considering that the Section 139 of the Negotiable Instruments Act, 1881 contemplates a presumption in favour of the payee/holder that the cheque was obtained for the discharge of a debt or other liability. There are earlier decisions to the effect that such presumption will not be enlarged by including a presumption that there was a legally enforceable debt or other liability in discharge of which the cheque was issued. The learned counsel for the first respondent/complainant would contend that if the presumption does not include a presumption regarding the existence of a legally enforceable debt or other liability in discharge of which the cheque was issued, then the provision found in section 139 of the Negotiable Instruments Act, 1881 would almost become a dead letter and that the same was the reason that made a larger bench of the Hon'ble Supreme Court to hold that the presumption mandated by section 139 of the Negotiable Instruments Act, 1881 includes a presumption that there exists a legally enforceable debt or other liability in Rangappa v. Sri Mohan reported in (2010) 11 SCC 441 = AIR 2010 SC 1898.

E.   The Court below did not appreciated the law declared by the Apex Court in its proper perspective by going by the legal dictum laid down by the Apex Court in decisions as in John K. Abraham Vs. Simon C. Abraham and Another [(2014) 2 SCC 236], K. Subramani Vs. K. Damodara Naidu [(2015) 1 SCC 99], K.Prakashan Vs. P.K.Surendran [(2008) 1 SCC 258], the complainant is not entitled to secure the benefit of the statutory presumption under section 118(a) and section 139 of the Negotiable Instrument Act in as much sue as the complainant has proved that he had the source of funds at the relevant time of the borrowal transaction. That the complainant has duly discharged his burden in the facts and circumstances of this case.

F.   The Hon'ble High Court of Kerala in V.K.Gemini v. Chandran, 2007 Crl. L.J 1285, has already pondered over these questions in the following words :-

                    I.        "Can the complainant ( ie., the "payee" or the "holder in due course") in a prosecution for offence under section 138 of the Negotiable Instruments Act (the Act, for short) be presumed to be the "holder" of the cheque ?

                  II.        Can the presumption under section 139 of the Act be drawn in favour of the complainant, invariably in all such complaints treating him as the "holder" of the cheque?

               III.        Can the mere admission of the handwriting and signature in the cheque lead to the presumption under section 139 of the Act that the cheque is received for the discharge of a debt or liability ?

In V.K.Gemini (supra) the Hon'ble Kerala High Court, very elaborately discussed the definitions, ingredients, and characteristics 'payee', 'holder in due course', as well as 'holder' and held that the presumption under Section 139 NI Act arises only where the complainant is able to prove that he is the holder of the cheque. Mere proving that he is the payee or holder in due course, itself is not sufficient to draw presumption. In this case, court while discussing and interpreting the various terms occurring in Sections 138, 139 and S.142 of the Act, further held that mere admission of the handwriting and signatures in the cheques would not draw presumption under section 139 of the Act that the cheque is received for the discharge of a debt or liability. Court is of the view that mere signing or writing the cheque if done voluntarily only proves its 'drawn' but the 'purpose' for which it was drawn must be established through some basic necessary facts to find out whether it was drawn for discharge of debt or liability in order to attract presumption u/s 139 of the NI Act. According to Section 139, presumption is drawn in favour of 'holder' of the cheque only and not in favour of 'payee' or 'holder in due course'. Complainant can be filed in the court by payee or holder in due course as defined under sections 7 and 9 of the Act but it is not necessary that they are also the holder of the cheque as described under section 8 of the Act. It is further held that mere possessor of the cheque is not called as holder nor the person who produces the cheque from his custody in court is termed as holder. As per section 8 of the Act, holder is a person who is entitled in his own name to the possession of the cheque and to receive or recover the amount due thereon from the concerned party. 'Entitlement' denotes a legal right to have something of to do something. Any and every entitlement is not enough but it must be entitlement 'in his own name'. Moreover holder's right is not merely to receive or recover the amount stated or shown in the cheque, but such amount must be 'due' thereon from the drawer thereto. The drawer must be bound to pay the amount and holder must be entitled in his own name to receive that due amount, Holder of cheque who has a right or entitlement to receive the amount due of the cheque in his own name can ask the court to draw presumption of debt or liability in his favour even if he is not in actual possession of the cheque. After a long discussion, High Court held that in section s138 and 142, reference is given to payee or holder in due course but in section 139 only holder is described. Holder of the cheque may be holder in due course but it is not always necessary that holder in due course shall be holder also. There is no presumption under the law that every person possessing a cheque is a holder and unless the person possessing the cheque is demonstrated to be the holder, until then the presumption of legal liability cannot be drawn.

G.  The Court below unnecessarily relied upon the Judgment delivered in the case of S Timappa Vs L S Prakash 2010 Cri. L. J. 3386 [Kar] in which it was observed that except the cheque there was no other document evidencing advancement of loan. It was held that it was difficult to believe that a businessman (the complainant) would advance a substantial amount of Rs. 1,30,000/­ without taking any document to evidence such transaction.

H.  The Court below ought to have appreciated that decisions pronounced by Hon'ble Supreme Court in Chandrappa and Ors. Vs. State of Karnataka, 2007 Crl L.J 2136, following general principles were laid down regarding powers of appellate Court while dealing with an appeal against an order of acquittal:-

(i) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded;

(ii) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law;

(iii) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

(iv) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(v) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

I.    The Court below committed grave irregularity-illegality in not considering that Since the contentions relate to the proper interpretation of Section 118 (a), 138 and 139 of the Act, it would be useful to quote the language of relevant provisions:-

"118. Presumptions as to negotiable instruments. - Until the contrary is proved, the following presumptions shall be made:

(a) of consideration: that every negotiable instrument was made or drawn for consideration, and that every such instrument when it has been accepted, endorsed, negotiated or transferred, was accepted, endorsed, negotiated or transferred for consideration;

138. Dishonour of cheque for insufficiency, etc., of funds in the account. - Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless-

(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier.

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and

(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.

Explanation - For the purposes of this section, `debt or other liability' means a legally enforceable debt or other liability.

139. Presumption in favour of holder.- It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138 for the discharge, in whole or in part, of any debt, or other liability."

J.    It most humbly submitted that when the accused is not able to establish a probable defence or refute the existence of consideration and non-existence of the same, the presumption under Section 138 N.I. Act stands as it its. In this connection, the complainant, cited Hiten P.Dalal v. Bratindranath Banerjee [(2001) (6) SCC 16 and Rangappa vs. Sri Mohan [(2010) 11 SCC 441].

K.   Prior to the filing of the present complaint, a legal notice dated 17.12.2008 was sent to the respondent by registered AD post, as well as through UPC alleging demand of cheque amount by the complainant as he was taken a friendly loan, in lieu of which a cheque was issued by the respondent which was ultimately dishonoured on presentation due to Bank account closed. As seen above, service of this notice was denied by the respondent while replying to the questions put to her u/s 251 Cr.P.C.

L.   From this vague answer given by the respondent, it cannot be deciphered whether the respondent was denying the service of the legal notice or failure on his part to make the payment despite receipt of this legal notice. Keeping in view the fact that at the earliest juncture when notice under Section 251Cr.P.C. was served upon the respondent, she had accepted the service of the legal notice, it does not lie in her mouth to allege that the same was not served upon him. As such service of legal notice prior to filing of the complaint upon the respondent was duly proved.

M. Admittedly, no reply to the legal notice was sent by her thereby rebutting the allegations made by the complainant. As far back in the year 1980, in Kaluram v. Sita Ram, 1980 RCR Note 44, it was held by this Court that when serious allegations are made in a notice and defendant failed to send any reply, then the allegations are deemed to have been admitted. Even in Rangappa (supra) relied upon by the learned counsel for the appellant it was observed that failure on the part of the accused to reply to the statutory notice under Section 138 of the Act lead to inference that there was merit in complainant's version.

N.  As such, failure on the part of the respondent to send any reply to the legal notice reflects that respondent did not controvert the allegations of the complainant that the cheque amount was due. Once the issuance of cheque was admitted by the respondent, the presumption under Section 118 (a) would arise that there is existence of a legally enforceable debt or liability. However, this presumption is a rebuttable presumption. Section 139 of the Act is an example of a reverse onus clause that has been included in furtherance of the legislative objective of improving the credibility of negotiable instruments. While Section 138 of the Act specifies a strong criminal remedy in relation to the dishonour of cheques, the rebuttable presumption under Section 139 is a device to prevent undue delay in the course of litigation. However, it must be remembered that the offence made punishable by Section 138 can be better described as a regulatory offence since the bouncing of a cheque is largely in the nature of a civil wrong whose impact is usually confined to the private parties involved in commercial transactions. In such a scenario, the test of proportionality should guide the construction and interpretation of reverse onus clauses and the accused/defendant cannot be expected to discharge an unduly high standard or proof. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of `preponderance of probabilities'. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. The accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own as observed in Rangappa (supra).

O.  Even after service of this legal notice, the respondent did not bother to call upon the complainant to return her cheque. In fact, the plea sought to be raised by the respondent that she had not given a cheque is a sham plea and devoid of any merit. In Indian Bank vs. M/s Cheese Wafers (India) Pvt. Ltd & Ors., 76(1998)DLT 893, similar plea was taken that signatures were obtained on blank documents. It was held that defendant did not raise even a whisper after signing the letter of acknowledgment of liability and, therefore, to contend that the documents signed by the defendant were blank, which was subsequently filled up is only an afterthought to cover their acknowledgment which they had made in 1992. Defendants chose to keep silent about their signatures having been obtained on blank documents. This plea was taken at the time of filing of the application for leave to defend and not earlier at any stage. The conclusion, therefore, is that the plea now sought to be raised by the defendant to the effect that the signatures were obtained on blank documents is sham plea and devoid of any force. Similar view was taken in Shiv Manohar Vs. Canara Bank, 1996 ISJ (Banking) 409.

P.   Since this is an appeal against acquittal, it will be proper to consider the legal position first. Chapter XXIX (Sections 372-394) of the Code of Criminal Procedure, 1973 (hereinafter referred to as 'the present Code') deals with appeals. Section 372 expressly declares that no appeal shall lie from any judgment or order of a Criminal Court except as provided by the Code or by any other law for the time being in force. Section 373 provides for filing of appeals in certain cases. Section 374 allows appeals from convictions. Section 375 bars appeals in cases where the accused pleads guilty. Likewise, no appeal is maintainable in petty cases (Section 376). Section 377 permits appeals by the State for enhancement of sentence. Section 378 confers power on the State to present an appeal to the High Court from an order of acquittal. The said section is material and may be quoted in extenso;

"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), 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 acquittal passed by any Court other than a High Court, 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 also direct the Public Prosecutor to present an appeal, subject to the provisions of Sub-section (3), to the high Court from the order of acquittal.

(3) No appeal 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 from that order of acquittal shall lie under Sub- section (1) or under Sub-section (2).

Q.  Whereas Sections 379-380 cover special cases of appeals, other sections lay down procedure to be followed by appellate courts. Bare reading of Section 378 of the present Code (Appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the Legislature on the powers of the appellate Court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to reappreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal.

PRAYER

It is therefore most humbly and respectfully prayed that Judgment and Order dated 29.12.2018 passed by the Court of Mrs. Smrita Singh Thakur, IIIrd Additional Session Judge, District – Sehore - 466 651 (Madhya Pradesh) in the matter of Jwala Prasad Deshwali V/s Ajay Traders in the file of Criminal Appeal No. 309 of 2013, {Filing No.233301038592013/ Filing date 02.08.2017}, may kindly be set aside, in the larger interest of Justice.

PLACE : JABALPUR                   

DATE :                             ADVOCATE FOR APPLICANT

IN THE HIGH COURT OF JUDICATURE OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR

MISCELLANEOUS CRIMINAL CASE NO. 4628 OF 2019

APPLICANT/            :       AJAY TRADERS

VERSUS

NON-APPLICANT/   :       Jwala Prasad Deshwali

LIST OF DOCUMENTS

S.No	Description of document	Date of document	Original copy	Number of page
1.	Judgment of Conviction and Order of Sentence passed by the Court of Judicial Magistrate, First Class, Mr. Ayaz Mohammed, District – Sehore (Madhya Pradesh) in the matter of Ajay Traders V/s Jwala Prasad in the file of Regular Criminal Trial No. 210 of 2009, {Filing No.233301001972009/ Filing Date 04.02.2009}	06.09.2013	Xerox	05 (Five)
2.	Judgment and Order  passed by the Court of Mrs. Smrita Singh Thakur, IIIrd Additional Session Judge, District – Sehore - 466 651 (Madhya Pradesh) in the matter of Jwala Prasad Deshwali V/s Ajay Traders in the file of Criminal Appeal No. 309 of 2013, {Filing No.233301038592013/ Filing date 02.08.2017}	29.12.2018	Certified Copy	05 (Five)

PLACE : JABALPUR                   

DATE :                             ADVOCATE FOR APPLICANT