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2001 DIGILAW 663 (AP)

A. S. v. S. N. Murthy VS K. Ravindarreddy

2001-07-02

D.S.R.VERMA

body2001
D. S. R. VARMA, J. ( 1 ) THIS appeal is preferred against the orders dated 3-8-2000 passed in Criminal appeal No. 440 of 99 passed by the I Addl. Metropolitan Sessions Judge, Hyderabad confirming the order of conviction passed by the trial Court. ( 2 ) THE matter arises under Section 138 of negotiable Instruments Act. Upon a complaint given by the appellant herein the trial Court passed an order holding respondent guilty for the offences punishable under Section 138 of the negotiable Instruments Act and sentenced him to undergo R. I. for one year and to pay a fine of Rs. 5,000/- and in default of payment of fine to suffer simple imprisonment of 3 months. ( 3 ) AGGRIEVED by the same, the accused respondent therein filed Criminal Appeal no. 440 of 99 before the Appellate Court. The appellate Court upon considering the material available on record partly allowed the appeal holding that the sentence of imprisonment imposed against the appellant accused to suffer R. I. for one year for offence u/sec. 138 of N. I. Act is modified to that of fine and that the appellant accused is sentenced to pay-a fine of Rs. 10,000/- in default to suffer simple imprisonment for six months in addition to the sentence of fine of rs. 5,000/- imposed against the appellant/ accused by the lower Court and the judgment of the lower Court is confirmed with regard to the sentence of fine imposed against the appellant/accused. ( 4 ) AGGRIEVED by the said order, the present appeal is filed by the complainant on the ground that the punishment imposed by the Appellate Court is improper, and seeking enhancement of the sentence, on the ground of inadequacy. ( 5 ) THE main question that arises for consideration in this appeal is whether an appeal is maintainable in cases where the private complainant seeks enhancement of punishment imposed on the accused, on the ground of inadequacy. ( 6 ) SECTION 378 of Cr. P. C. provides a right of appeal to the State Government against an order of acquittal passed by any Court other than High Court. It also prescribes procedure to be adopted by the Courts. Section 377 of Cr. P. C. enables the State to file an appeal against the sentence on the ground of inadequacy. P. C. provides a right of appeal to the State Government against an order of acquittal passed by any Court other than High Court. It also prescribes procedure to be adopted by the Courts. Section 377 of Cr. P. C. enables the State to file an appeal against the sentence on the ground of inadequacy. ( 7 ) FOR ready reference the relevant portions of Section 377 Appeal by the State government against sentence:- (1) Save as otherwise provided in subsection (2), the State Government may, in any case of conviction on a trial held by any Court other than a high Court, direct the Public prosecutor to present an appeal to the high Court against the sentence on the ground of its inadequacy. (2 ). . . . . . . . . . . . . (3 ). . . . . . . . . . . . and section 378: Appeal in case of acquittal:- (1) Save as otherwise provided in subsection (2) and subject to the provisions of sub-sections (3) and (5), 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 acquittal passed by any Court other than a High Court, (2 ). . . . . . . . . . . . . . (3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High court. (4) If such an order of acquittal is passed in any case instituted upon 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. (5 ). . . . . . . . . . . . . . . . . . (6 ). . . . . . . . . . . . . . . . ( 8 ) A close reading of the above sections makes it clear that they are two distinct provisions, specifically indicating that State can file an appeal under both the provisions challenging the order of the lower Court on ground of inadequacy of sentence or acquittal respectively. But under sub-sec. . . . . . . . . . . ( 8 ) A close reading of the above sections makes it clear that they are two distinct provisions, specifically indicating that State can file an appeal under both the provisions challenging the order of the lower Court on ground of inadequacy of sentence or acquittal respectively. But under sub-sec. (4) of Section 378 a private complainant can file an appeal to High Court only against an order of acquittal with the leave of the High court. Further Section 377 makes it abundantly clear that against the sentence the State Government can prefer an appeal to the High Court on the ground of its inadequacy. But no such facility is extended to a private complainant. ( 9 ) IN these circumstances, the only provision that is available to Private complainant is Section 397 of Cr. P. C. which reads as follows:- "calling for Records to exercise powers of Revision:- (1) The High Court or any sessions Judge may call for and examine the record of any proceedings before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. (2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions judge, no further application by the same person shall be entertained by the other of them. " ( 10 ) THIS provision confers power both upon the High Court and Sessions Court to examine the record of any proceedings before any inferior criminal Court with regard to the correctness, legality or propriety of any findings, sentences or order. " ( 10 ) THIS provision confers power both upon the High Court and Sessions Court to examine the record of any proceedings before any inferior criminal Court with regard to the correctness, legality or propriety of any findings, sentences or order. ( 11 ) THEREFORE it is clear from the above position of law that the appellant who is a defacto complainant who has been questioning the adequacy of the punishment is barred from filing an Appeal before this Court under Section 378 of the Cr. P. C. In other words, he has to file a revision questioning the legality or otherwise, which may include the adequacy or otherwise of the sentence recorded by the Appellate Court. ( 12 ) FOR the above reasons, it is abundantly clear that this appeal is not maintainable under Section 378 of Cr. P. C. for want of jurisdiction. Therefore, the Appeal is liable to be dismissed on this score only. Accordingly, the Criminal Appeal is dismissed.