ASSIGNMENT- 11

INTRODCUTION

The term “appeal” has not been defined in the code. According to the dictionary meaning, an
appeal is a complaint or grievance to a superior court for reconsideration or review of a decision,
verdict or sentence of a lower court.

Chapter XXXIX (Section 372 – 394 of Cr.PC) deals with Appeals.

A right of Appeal is not a natural or inherent right. It is a statutory right and must be governed by
the statute which grants it.

SECTION 372 - provides, no appeal lies except otherwise provided by the Code or by any other
law for the time being in force. Under Articles 132, 134 and 136 of the Constitution of India, it
may be possible to present an appeal to the Supreme Court against the order of acquittal passed
by the High Court
.
SECTION 373 – APPLIES TO APPEALS FROM 

1. Orders requiring security for keeping peace or good behavior and

2. Against order refusing to accept or rejecting to accept or rejecting a surety under s. 121. 

The appeal lies to Court of Session, except, of course, in cases where under sub-s. (2) Or (4) of
S. 122, the proceedings are already laid before the Session Judge.

SECTION 374: APPEALS FROM CONVICTIONS 

 Any person convicted on a trial held by a High Court in its extraordinary original
criminal jurisdiction may appeal to the Supreme Court.
 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
 Save as otherwise provided in sub-section (2), any person,
 convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge
or Magistrate of the first class, or of the second class,
 sentenced under section 325, or
 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.

While disposing of appeals from the sentences of the Sessions Court under this Section, the High
Court should specify the reasons for rejection of appeal and should not reject it summarily. This
will enable the Supreme Court to know the view of the High Court, in case the appellant moves
the Supreme Court in appeal. For computing the sentence of imprisonment for seven years for
the purpose of ascertaining the appellate forum under Section 374 (2), the sentence in default of
payment of a fine is not to be added to the substantive sentence of imprisonment.

Chandrashekhar S/O Khushalrao v. The State Of Maharashtra on 3 July, 1991

Section 377 of Criminal procedure Code gives power to appeal against the sentence to the State
Government and provisions are in respect of appeal in case of acquittal. Sub section(2) of
Section 394 of Criminal Procedure Code speaks that every appeal except for the sentence of fine
shall be finally abate on death of the appellant. In this case, the deceased preferred an appeal
under Section 374 so it comes under Sub section (2) of Section 394 of Criminal Procedure Code.

Jagdish And Anr. v. The State Of Rajasthan on 8 January, 1992

The appeal was not maintainable because of Section 376 of Criminal Procedure Code, no appeal
has been provided in petty cases. The submission is that the accused has to furnish security to
keep good behavior and peace under Section 4 of Probation of Offenders Act and no appeal lies
under Section 376 and Section 374 of Criminal Procedure Code. The order should be treated as
an order in revision and the second revision is not permissible.

An appeal is the creature of power and jurisdiction of Appellant Court. Appeal makes the higher
court to reverse the judgment or order of the lower court. The respondent usually files a
responsive brief encountering the arguments. The appellant can encounter that arguments with
his final brief. Appeals from orders requires security such as good behavior and peace of the
appellant. Victim can file appeal against acquittal without seeking leave or permission to appeal.
Appeal is an important remedy for person’s dissatisfaction with the judgment or the order of trial
court. Appeal to the court of session should be heard by the session’s judge. If the appellant is in
jail then he may present his appeal to the officer in charge of jail. Pending of an appeal by
accused ,the Appellate Court can suspend the execution of sentence and the person in
confinement be released on bail.
 IN THE COURT OF DISTRICT & SESSION JUDGE, CENTRAL DISTRICT, DELHI

Criminal Appeal No - 1242/2020

In the matter of

SH. RAJENDRA YADAV

S/O SH. ASHVENDRA YADAV
R/O HOUSE NO 12/26, SARAI JULLENA,
NEW FRIENDS COLONY,
NEW DELHI- 110 025 …APPELLANT

VERSUS
STATE
GOVT. OF NCT OF DELHI
NEW DELHI …..RESPONDENT

APPEAL UNDER SECTION 374 Cr. P.C AGAINST ORDER DATED 24-2-2020
WHERBY APPELLANT WAS CONVICTED AND SENTENCED TO SIMPLE
IMPRISIONMENT OF THREE MONTHS AND TO PAY COMPENSATION IN THE
SUM OF Rs.3,00,000/- (THREE LAKH ONLY).

Most Respectfully Showeth:

1. That the complainant herein preferred complaint under Section 142/138 of the Negotiable

Instruments Act, 1881 alleging that the appellant in the month of February 2019 asked for

a friendly loan of Rs. 2,50,000/-.

2. That the complainant herein has stated to advanced the loan of Rs. 2,50,000/- and further

stated that the appellant had promised to return said loan in eight installments and issued

eight cheques amounting to Rs. 2,50,000/-. However, in the course of examination when,

where, how much the loan was advanced did not find mention either in the complaint,

evidence or submission made by the complainant herein.

3. That as averred in the complaint, complainant wherein asked the appellant to repay the

said loan in the month of August 2019 to October 2019 i.e., soon within 6 months and

appellant issued a cheque amounting to Rs. 50,000/- on 20 th day of August 2019

followed by seven cheques amounting to Rs. 20,000/- whereas balance of Rs. 60,000/-

was to be paid on 12 day of November, 2020 all drawn on Indian Bank, Sarai Jullena,

New Delhi – 110025 favouring the complainant herein in discharge of his aforesaid loan

liability.
4. That when the cheques were presented for payment they were returned back with the

reason “funds insufficient” and the complainant herein sent three legal notices all dated

1st day of December, 2019 through his counsel within limitation and same are exhibited

and placed on record. The appellant had replied all three notices through his counsel.

Wherein the appellant has specifically stated that he did not issue any cheque in favour of

the complainant. And the cheques of appellant has been lost and the FIR was filed dated

– 18th day of February 2019 and requested complainant to withdraw notices.

5. That the Ld. Trial Court summoned and admitted the appellant on bail whereas on

charge, appellant pleaded not guilty and prayed for trial. During the course of trial

complainant herein led his evidence, statement of appellant was recorded and the

appellant led evidence by way of affidavit in his defence and exhibited the documents of

police complaint and FIR.

6. That right from beginning the appellant maintained the fact that the subject cheques have

been lost and the complainant herein has misused the same. In support of his contention

appellant had placed on record the police complaint as well as non-cognizable report,

same is placed on record.

7. That the complainant herein Sh. Abhishek Mishra S/o. Dhannayjay Mishra R/o pocket A

62C, Sukhdev Vihar was never a friend or acquainted with the appellant and the

complainant herein has stated in his cross examination that he is earning a sum of Rs.

12,000/- per month doing call centre work and does not have any other source of income

consequently there is no ground to believe the theory of the complainant herein that he

had advance a loan of Rs. 2,50,000/- as alleged. The complainant herein has also not

produced or exhibited any evidence to that effect for advancing the alleged loan of Rs.

2,50,000/- whereas the fact remained that the complainant herein had misused the lost

cheques of the appellant.

8. That after hearing both the parties the Ld. Trial Court convicted the appellant and

sentenced him to undergo simple imprisonment for three months and to pay a sum of Rs.

3,00,000/- as compensation for all the cheques involved in all the matter, Aggrieved by

the said order the appellant assails and is moving present appeal before this Hon’ble

Court.
GROUNDS FOR THE APPEAL:

1. That the impugned order, which is based on surmises and conjectures and totally against

the matrix of facts and law hence the order as well as sentence is void, illegal and liable

to be reversed, quashed and set aside.

2. That the Ld. Trial Court did not appreciate the fact that the complainant herein has failed

to discharge the onus to prove that subject cheque were issued for any specific admitted

consideration wherein the complainant has miserably failed to prove that when, where

and how (mode of payment) and how much alleged loan was advanced.

3. That complainant herein has further failed to prove that how much of the alleged loan

was advanced and placed any documents, receipts and records/accounts to the affect that

the complainant herein had advanced any friendly loan to the appellant as alleged in his

complaint, hence order is bad in the eyes of law and liable to be reversed, quashed and set

aside.

4. That the Ld. Trial Court has failed to appreciate the fact that the complainant herein has

miserably failed to place any document to show any recordable debt/ liability of appellant

towards the complainant herein as claimed. It is pertinent to mention here that the

complainant herein even did not place on record any documentary evidence to prove his

allegation that any particular time alleged friendly loan was advanced by the complainant

herein to the appellant therefore said impugned order is liable to be reversed and quashed.

5. That the Ld. Trial Court has observed but ignored the material fact that there is no

evidence regarding payment of any friendly loan by the complainant herein to the

appellant, hence the order is bad in the eyes of law and liable to be set aside.

6. That the Ld. Metropolitan Magistrate has erred in law disbelieving and ignoring the

version of appellant wherein appellant had placed on record and exhibited the document

police complaint as well as NCR both dated 18 -02-2018 stating therein that the appellant

has lost his bag containing 12 cheques, which includes 8 cheques in the instant complaint

cases that the complainant herein has misused the lost cheques of the appellant,

consequently present impugned order passed against the appellant herein which is liable

to be quashed.

7. That the Ld. Trial Court has ignored the material emphasized by the appellant that he has

no acquaintance and unknown to the complainant herein and there is no chance to

 advance a loan of Rs. 2,50,000/- that too without obtaining any security deposit excepting

the subject cheques involved in the instant complaint cases, hence the impugned order is

liable to be recalled, reversed and quashed.

8. That the Ld. MM has grossly erred and ignored the fact submitted by the appellant herein

that the appellant did not mention name of the payee and date of drawing the cheques in

question which have been filled by different persons in different colored ink, therefore,

the impugned order is liable to be set aside.

9. That the Ld. Trial Court has failed to appreciate specific documentary evidence exhibited

along with appellant’s affidavit in his defence that there was no friendly loan as alleged,

rather the cheques in question were lost and complaint to that affect has been lodged with

the local police consequently the complaint is not maintainable as the same is not a

legally enforceable liability and an exception to Section 138 of The Negotiable

Instruments Act, 1881, therefore, the order passed by the Ld. Trial Court is bad in the

eyes of law and liable to be reversed, set aside and quashed.

10. That the Ld. Trial Court did not appreciate the fact that usually a person uses one or two

cheque books at any one time, whereas the lost 12 cheques involved four different

cheque-books as he has stated in his complaint before local police on 25-02-2018 made

by him along with FIR, therefore, impugned judgment/ order is liable to be set aside.

11. That the Ld. Trial Court has failed to appreciate the fact that the complainant herein has

alleged to have advance loan of Rs. 2,50,000/- in the month of February 2018 to an

unknown person and asking return of the loan amount just within a period of 6 months

which is highly improbable and unbelievable story cooked by the complainant herein,

therefore, the impugned order is liable to be quashed.

12. That the Ld. Metropolitan Magistrate has failed to appreciate the fact that the

complainant herein is earning a sum of Rs. 12,000/- per month from his employment

without any other support/ source of income and arranging Rs. 2,50,000/- from his own

savings is absolutely unbelievable and improbable story, hence the order passed by the

Ld. MM is liable to be set aside.

13. That the Ld. Metropolitan Magistrate has failed to appreciate the fact that the alleged loan

was not legally recoverable debt as stated by the appellant in his affidavit as well as

deposition before the Hon’ble Court and has stood to the test of cross examination as
 well. On the contrary the appellant has exhibited the document of complaint before the

local police and lodging FIR for the lost cheques involved in the present complaint cases,

hence the order passed by the Ld. MM is liable to be set aside.

14. That the Ld. Trial Court has failed to consider various decision handed down by the

Hon’ble Supreme Court regarding maintainability of the complaint resulting into

impugned judgment of conviction is against the facts and law consequently miscarriage

of justice. Hence the judgment of Ld. Trial Court is neither just nor fair or reasonable and

against the principles of law, justice and equity.

15. That the appellant craves the leave of this Hon’ble Court to urge any other additional

grounds which would be made available to him at the time of final hearing of present

appeal.

16. That present appeal of the appellant is within prescribed limitation.

PRAYER:

It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be

pleased to call for the trial court records, set aside impugned order passed by Ld. Trial Court,

accept present appeal and acquit the appellant in the interest of justice.

It is further prayed to pass any other order as this Hon’ble Court may deem fit and proper

in the light of the facts and circumstances explained hereinabove, in favour of the appellant and

against the respondents, to meet the ends of justice, fairness and equity.

APPELLANT

NEW DELHI
Through

DATE: 06th MARCH ,2020 COUNSEL

 IN THE COURT OF DISTRICT & SESSION JUDGE, CENTRAL DISTRICT, DELHI

Criminal Appeal No - 1242/2020

In the matter of

SH. RAJENDRA YADAV

S/O SH. ASHVENDRA YADAV
R/O HOUSE NO 12/26, SARAI JULLENA,
NEW FRIENDS COLONY,
NEW DELHI- 110 025 …APPELLANT

VERSUS
STATE
GOVT. OF NCT OF DELHI
NEW DELHI …..RESPONDENT

AFFIDAVIT

I, Rajendra yadav S/O Sh. Ashvendra Yadav aged about 335 years R/O H. No 12/26, ,Sarai
Jullena,New Friends Colony, New Delhi-110025 do hereby solemnly affirm and declare as
under:

1. That I am appellant in the above noted case and am conversant with the facts and
circumstances of the case and also competent to depose this affidavit.
2. That accompanying appeal has been drafted by my counsel under my instructions,
contents of the same may be read as part and parcel of this affidavit which is not repeated
herein for the sake of brevity and the same are read over to me in vernacular and stated
that the facts mentioned therein are true and correct to the best of my knowledge and
belief.

Deponent

VERIFICATION

Verified at New Delhi on this 06th March 2020 that the contents of my above affidavit are
true and correct to my knowledge, no part of this affidavit is false and nothing material has been
concealed therefrom.