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2017 (12) TMI 776 - HC - Indian LawsConstruction 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 - Such a complainant is not a victim within the meaning of Section 2(wa) of the Code and would stand excluded therefrom, by virtue of the fact that the accused in such a case is not subjected to a charge. - the question is answered in the negative. Whether such a complainant would be entitled to file an appeal under the proviso to Section 372 of the Code before the Court to which an appeal lies against conviction - Held that - As such a complainant does not come within the ambit of a victim under Section 2(wa) of the Code, his only remedy is to prefer an appeal under Section 378(4) of the Code, with special leave - answered in negative. Whether the complainant in a complaint case for the offence punishable under Section 138 of Negotiable Instruments Act or for any other offence either bailable or non-bailable is required to file an appeal against acquittal in a complaint case seeking special leave of the Court under Section 378 (4) of Cr. P.C.? - Held that - a complainant in a complaint case relating to an offence under Section 138 of the Act of 1881 would be required to file an appeal against acquittal in such case only under Section 378(4) of the Code, after seeking special leave. In all other complaint cases relating to offences, either bailable or non-bailable, even if the accused therein is charged, the complainant therein would not have the right of preferring an appeal under the proviso to Section 372 of the Code and he would have to continue to avail the special remedy of appeal provided to him under Section 378(4) of the Code, duly seeking special leave - the appeal filed under the proviso to Section 372 of the Code by the first respondent herein, the complainant in a complaint case under Section 138 of the Act of 1881, is not maintainable. It is not a sound principle of construction to brush aside words in a statute as being inapposite surplusage, if they can have appropriate application in circumstances conceivably within the contemplation of the statute. Petition disposed off.
Issues Involved
1. Whether the complainant in a complaint case for the offence punishable under Section 138 of Negotiable Instruments Act is a victim as defined under Section 2(wa) of Cr. P.C. as amended by the Act No.5 of 2009. 2. If the complainant is a victim within the definition of Section 2(wa) of Cr. P.C., is he entitled to file an appeal invoking the proviso to Section 372 of Cr. P.C. before the Court to which an appeal lies against the conviction. 3. If not, whether the complainant in a complaint case for the offence punishable under Section 138 of Negotiable Instruments Act or for any other offence either bailable or non-bailable is required to file an appeal against acquittal in a complaint case seeking special leave of the Court under Section 378(4) of Cr. P.C. Analysis of the Judgment Issue 1: Definition of Victim under Section 2(wa) of Cr. P.C. The court examined whether the complainant in a Section 138 Negotiable Instruments Act case is a victim as defined under Section 2(wa) of the Cr. P.C. The term "victim" is defined as a person who has suffered any loss or injury caused by the act or omission for which the accused person has been charged. The court noted that in cases under Section 138, no formal charge is framed as these cases are tried as summons cases. Therefore, the complainant cannot be considered a victim under Section 2(wa) because the accused is not formally charged. Consequently, the complainant in a Section 138 case is not a victim within the meaning of Section 2(wa) of the Cr. P.C. Issue 2: Right to Appeal under Proviso to Section 372 of Cr. P.C. Given that the complainant in a Section 138 case is not a victim under Section 2(wa), the court held that such a complainant is not entitled to file an appeal under the proviso to Section 372 of the Cr. P.C. The proviso allows a victim to appeal against an order of acquittal, but since the complainant in a Section 138 case is not a victim as defined, they cannot invoke this provision. The only remedy available to the complainant is to file an appeal under Section 378(4) of the Cr. P.C., which requires special leave from the High Court. Issue 3: Appeal Against Acquittal under Section 378(4) of Cr. P.C. The court clarified that for complainants in Section 138 cases, the appropriate procedure is to file an appeal against acquittal under Section 378(4) of the Cr. P.C., which necessitates obtaining special leave from the High Court. This applies not only to Section 138 cases but also to other offences, whether bailable or non-bailable, where the complaint is initiated by the complainant. The special remedy under Section 378(4) remains the sole recourse for such complainants. Conclusion The court concluded that the complainant in a Section 138 case is not a victim under Section 2(wa) of the Cr. P.C. and is therefore not entitled to appeal under the proviso to Section 372. The appropriate remedy is to seek special leave to appeal under Section 378(4). Consequently, the appeal filed by the complainant under the proviso to Section 372 was quashed, and the criminal petition was allowed. Final Order The criminal petition was allowed, and Criminal Appeal No.926 of 2016 on the file of the learned Metropolitan Sessions Judge, Hyderabad, was quashed.
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