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TMI Blog2014 (8) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... ach 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. - Criminal Appeal(MD) No.20 of 2014 and Criminal Revision Case (MD)No.237 of 2014 - - - Dated:- 4-8-2014 - THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR For the Appellant : Mr.M.Karunanithi For the Respondent : Mr.P.Ganapathisubramanian JUDGMENT Criminal Appeal No.20 of 2014 has been preferred against the judgment of the learned Additional District and Sessions Judge, Special Court for EC and NDPS Act Case, dated 26.12.2013 pronounced in Crl.A.No.13 of 2011 reversing the judgment of acquittal passed by the learned Judicial Magistrate, Pudukottai in S.T.C.No.124 of 2008. The said case in S.T.C.No.124 of 2008 came to be instituted on a complaint against the appellant for an alleged offence under Section 138 of the Negotiable Instruments Act, 1881. The trial Court acquitted the appellant herein/accused. As against the acquittal, the complainant preferred an appeal before the lower Appellate Court under Section 372 proviso Cr.P.C. The learned lower Appellate Judge allowed the appeal, set aside th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stood in the light of the object sought to be achieved by the amending Act introducing the amendment and that if such an approach is made, this Court cannot come to any other conclusion than the one in support of his contention. 7.It is the contention of the learned counsel for the appellant that a proviso should not be read disjunctively or independent of the main provision and that it should be interpreted either as an explanation or as an exception to the main provision, as the case may be. According to the submissions made by the learned counsel for the appellant, Section 372 reiterates the point which has been incorporated in the Code that no appeal will lie against any order or judgment unless such an appeal is provided in any other provision of the Code and that the same is the reason why the Section itself has been couched in a negative language to the effect that no appeal will lie against any order or judgment unless such an appeal is provided under any other provision of the Code. According to the submissions of the learned counsel for the appellant, if such an approach is made, the proviso found in Section 372 should be confined to its applications to those cases whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of a cognizable and non-bailable offence; (b) 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 an acquittal passed by any Court other than a High Court [not being an order under clause (a)] 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, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal- (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Special Leave of the High Court under Section 378 (4) of Cr.P.C. Sub Section 5 of the said Section provides that such leave shall be applied for within sixty days, in case the complainant is any other person than a public servant and within six months, in case the complainant is a public servant. A consideration of Section 378 will make it clear that it provides a code within the Code namely, a special provision for dealing with the appeals against acquittal in complaint cases. When such a special provision is there, the general provision namely, Section 372 and the proviso attached to it shall stand excluded by the special provision namely Section 378 (4) and (5) of Cr.P.C. In this regard, there had been divergent views among the High Courts. 16.The Hon'ble Division Bench of the Kerala High Court, in Omanajose and another Vs.State of Kerala and others reported in 2014(2) MWN (Cr) DCC 22, after going through the relevant provisions, namely Sections 372 and 378 Cr.P.C has rendered a clear finding that the term ?victim? found in Section 2 (wa) of Cr.P.C needs a harmonious construction and if such a harmonious construction is made then the term ?victim? would not include a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Subhash Chand Vs.State (Delhi Administration) reported in (2013) 2 SCC 17, Their Lordships of the Hon'ble Supreme Court made it clear that a complainant cannot file an appeal against acquittal in the Court of Session. Though the scope of Section 372 proviso was not canvassed and considered by the Hon'ble Supreme Court in the said case, it will provide a necessary clue that complainants are treated differently than the State and the victims in cases instituted on police report. 19. In view of the discussions made above, I am of the considered view 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 ..... 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