2014 (8) TMI 1134 - HC - Indian Laws

Construction and interpretation of essentially two provisions of the Code - Section 372 - Section 378 - whether the complainant in a complaint case for an offence punishable under Section 138 of the Act of 1881 is a victim as defined under Section 2(wa) of the Code, as amended by Act No.5 of 2009? - Held that - the term victim found in the proviso to Section 372 Cr.P.C shall not include a victim who is a complainant in a complaint case and that the term ?victim? used in the said proviso shall be confined to the victims in cases instituted otherwise than on a complaint. In the case on hand, the criminal case was instituted on the file of the trial Court on a complaint made by the respondent/ complainant. In fact, the offence is a non-cognizable offence and hence there can be no other mode of institution of the criminal case than by preferring a complaint to the Magistrate. The offence alleged is one punishable under Section 138 of the Negotiable Instruments Act, 1881 - As the case ended in acquittal before the trial Court, the remedy available to the respondent herein (complainant) was to approach this Court (High Court) under Section 378 (4) within the period stipulated in Section 378 (5) seeking Special Leave to file an appeal against acquittal. Appeal allowed.

Summary

Issues Involved:
1. Jurisdiction of the lower appellate court to entertain the appeal under Section 372 proviso Cr.P.C.
2. Interpretation of the term "victim" in the context of Section 372 proviso Cr.P.C.
3. Applicability of Section 378 Cr.P.C in cases of acquittal in complaint cases.
4. Adequacy of the sentence imposed by the lower appellate court.

Detailed Analysis:

1. Jurisdiction of the lower appellate court to entertain the appeal under Section 372 proviso Cr.P.C:
The appellant challenged the jurisdiction of the lower appellate court to entertain the appeal filed by the complainant under the proviso to Section 372 Cr.P.C. The appellant argued that the right of appeal conferred on the victim under Section 372 proviso is not available to a victim who is also the complainant in a case instituted on a complaint. The court agreed with the appellant, emphasizing that the proviso to Section 372 should be confined to cases not governed by Sections 373 to 383 Cr.P.C. The court concluded that the learned lower appellate judge erred in assuming jurisdiction and deciding the appeal, which went against the appellant.

2. Interpretation of the term "victim" in the context of Section 372 proviso Cr.P.C:
The court examined whether the term "victim" in the proviso to Section 372 Cr.P.C includes a complainant in a complaint case. The appellant contended that interpreting "victim" to include the complainant would render the appeal provisions in Section 378 (4) and (5) Cr.P.C ineffective. The court agreed, citing the Kerala High Court's decision in Omanajose and another Vs. State of Kerala and others, which held that the term "victim" should not include a complainant to avoid defeating the provisions of Section 378 (4) and (5). The court concluded that the term "victim" in the proviso to Section 372 Cr.P.C should be confined to victims in cases instituted otherwise than on a complaint.

3. Applicability of Section 378 Cr.P.C in cases of acquittal in complaint cases:
The court emphasized that Section 378 Cr.P.C provides a special provision for dealing with appeals against acquittal in complaint cases. It highlighted that appeals against acquittal in such cases can only be preferred with the special leave of the High Court under Section 378 (4) Cr.P.C. The court noted that the complainant in the present case should have approached the High Court under Section 378 (4) within the stipulated period. Instead, the complainant erroneously preferred an appeal under the proviso to Section 372 Cr.P.C before the Sessions Court, resulting in the lower appellate judge's lack of jurisdiction.

4. Adequacy of the sentence imposed by the lower appellate court:
The respondent (complainant) filed a Criminal Revision Case under Sections 397 read with 401 Cr.P.C, complaining that the sentence imposed by the lower appellate court was inadequate and praying for enhancement of punishment. However, since the court found that the lower appellate court lacked jurisdiction to entertain the appeal, it dismissed the Criminal Revision Case filed by the respondent (complainant).

Conclusion:
The court allowed the Criminal Appeal, set aside the judgment of the learned lower appellate judge dated 26.12.2013, dismissed the Criminal Revision Case filed by the respondent (complainant), and restored the order of acquittal pronounced by the learned Judicial Magistrate, Pudukkottai, dated 09.08.2010.