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TMI Blog2017 (8) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction' and finally came to the consequent conclusion that the evidence of P.W.1, Ex.P.1 to Ex.P.4 were insufficient and that the evidence of D.W.1, D.W.2, Ex.D1 to Ex. D3 were sufficient to disprove the case of complainant and consequently found the Respondent / Accused not guilty in respect of an offence under Section 138 of Negotiable Instrument Act, 1881 and acquitted him under Section 255(1) of Cr.P.C., 4. Questioning the legality, validity of the Impugned Judgment of Acquittal in S.T.C.153 of 2014 passed by the trial Court, the Petitioner / Appellant / Complainant has preferred the present Criminal Appeal in SR48767 of 2016 as an affected person primarily by taking a plea that the trial Court had failed to consider that the Respondent / Accused had not denied the issuance of cheque to the Appellant / Complainant. 5. Advancing his arguments, the Learned Counsel for the Petitioner / Appellant submits that the Respondent / Accused had admitted his signature in the cheque, but this aspect of the matter was not looked into by the trial Court in a proper and real perspective. 6. The Learned Counsel for the Petitioner / Appellant proceeds to take a plea that the Responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hit. 12. On behalf of the Respondent / Accused, a plea is taken that the complaint was a false one and that the blank signed cheque was fabricated and moreover, the blank signed stamp papers were given for security purpose and in short, the blank signed cheque was not given against any liability or debt. 13. The Learned Counsel for the Respondent / Accused draws the attention of this Court to the fact that the Respondent / Accused was examined as D.W.1 and as D.W.1, he had deposed before the trial Court that the Ex.P.1- Cheque was not given in respect of any debt or liability and that the cheques were given for security purpose to the chit amount. 14. The Learned Counsel for the Respondent / Accused in his counter at Paragraph No.12 has also taken a plea that the Appellate Jurisdiction for the trial Court's case in S.C.No.153 of 2014 is only the Principal District and Sessions Court at Thiruvallur and further, the trial Court upon analysis of entire gamut materials available on record came to the resultant conclusion that the Ex.P.1 Cheque was given security deposit and found him / Respondent / Accused not guilty in respect of an offence under Section 138 of Negotiable Instr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had joined as a member and in how many chits he is member, this could be answered only after looking into the accounts. 20. P.W.1 in his cross examination had specifically denied that the cheque which was given as security for the chits was utilised in the present case and the case was filed against the Respondent / Accused. 21. D.W.1 (the Respondent / Accused) in his evidence had stated that he is running a Rice Mill and he got acquaintance with the Petitioner / Appellant / Complainant through his Rice Mill business and later, that the Petitioner / Appellant had asked him whether he would join a chit in his chit fund and for that he had agreed and for a sum of Rs. 5,00,000/- in 'A' Group, for a sum of Rs. 5,00,000/- in 'B' Group and for a sum of Rs. 5,00,000/- in 'D' Group he is paying the amount and the said three chits are May auction chits and that P.W.1 himself had received the chit amount and later through Men he had collected the chit amount and apart from that even through Men daily he had collected the chit amount. 22. D.W.1 had added in his evidence that at the time of himself joining each chit, the Petitioner / Appellant had asked for his signa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- was given to the Respondent / Accused as hand loan. The Petitioner / Appellant, as P.W.1 in his evidence had deposed that he used to lend money to known persons and in fact P.W.1 (Petitioner / Complainant) had not denied that D.W.1 (Respondent / Accused) is also the subscriber of chits. Although, he does not know about the details of chits. It appears that the Respondent / Accused had obtained the loan for construction. 27. P.W.1 (Appellant) had deposed that he was connected with S.R.Y. Agencies and that chit calculation were provided for 01.05.2012, 11.06.2012, 10.07.2012, 01.8.2012. In reality, Ex.D.2 Series contain receipts (8) pertaining to 10.04.2012, 10.04.2012, 10.07.2013, 10.07.2013, 10.07.2013, 10.03.2013, 10.03.2013 and 10.03.2013. As a matter of fact, Exs.D.1 and D.2 documents unerringly point out that the Respondent / Acused is subscriber of chits under different groups and that the Petitioner / Appellant / Complainant is connected with the said chits. 28. The Respondent / Accused (D.W.1) had raised a probable defence by coming out with a plea that Ex.P.1- Cheque dated 02.05.2014 was issued to and in favour of the Petitioner / Appellant / Complainant towards the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concerned. After all, the prime consideration of the Court is that there should be an avoidance of miscarriage of justice. The miscarriage of justice may arise from the acquittal of guilty is no less than from the conviction of an innocent. 32. Coming to the aspect of the stand taken on behalf of the Respondent / Accused that the appellate jurisdiction for the trial Court Judgment in S.T.C.No.153 of 2014 dated 18.10.2016 is only Learned Principal District and Sessions Judge, Thiruvallur and further that the Ex.P.1 Cheque drawn on Indian Bank, Tirumazhisai Branch comes within Thiruvallur District and therefore the First Appellate Court is Principal District and Sessions Judge, Thiruvallur. 33. From the aforesaid ingredients of Section 378(4) of Cr.P.C., this Court is of the considered view that Section 378(4) of Cr.P.C., speaks of the term 'Complaint' and also deals with 'in any case instituted upon the 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'. As a matter of fact, Section 378 Cr.P.C., was su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vels of litigation. In the case of acquittal by the JMFC, the complainant could appeal to the High Court under Section 378(4) of the CrPC, and thereafter for special leave to appeal to the Supreme Court under Article 136. In such an instance, therefore, there will be three levels of proceedings." 38. The complainant can file an Appeal in cases of acquittal by the Judicial Magistrate of First Class before the High Court under Section 378 (4) of Cr.P.C., later, a Special Leave to Appeal can be filed before the High Court under Article 136 of the Constitution of India. As per Article 141 of the Constitution of India, the decision of the Hon'ble Supreme Court is binding on all the Courts in the Country. 39. It is to be pointed out that ultimately, the duty of the Court of Law is to expound the Law as it stands and to 'Leave the Remedy' (if one resolved upon) to others as per decision Sutters V. Briggs, 1922(1) AC 1 at Page 8 (Per Lord Birkenhead) 40. Further, in the decision South Asia Industries Private Limited V. S.Saroop Singh and Others, reported in AIR 1966 at Page 346 it is held that 'the object of interpreting a statute is to ascertain the intention of Legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (n) of Cr.P.C., or under Sections 3(38) of the General Clauses Act, 1897. Really speaking, a 'Crime' is essentially wrong against the 'Society' and the 'State'. 46. Section 378 of Cr.P.C., speaks of filing of an Appeal in cases of 'Acquittal orders' passed by the Subordinate Courts by virtue of amendment provision for the year 1978, in case of acquittal order passed by the Court of Sessions in Revision an Appeal can be filed . Further, by means of an Amendment Act, 2005, an Appeal against an Order of Acquittal passed by the Learned Judicial Magistrate in respect of cognizable or non-cognizable or non bailable offence filed on a police report can be filed before the Court of Session and the District Magistrate / District Collector is empowered to direct the Public Prosecutor to prefer such Appeals. 47. In fact, sub-section (4) of Section 378 of Cr.P.C., refers to 'Filing of Appeal' in cases instituted upon complaints. But the condition is that a complainant is to secure necessary orders for the grant of Special Leave from the court concerned as per decision Subbaiah Gowdar V. Kandasamy Gounder reported 1970 L.W. (Crl) page 208. Under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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