Research › Search › Judgment

Madhya Pradesh High Court · body

2012 DIGILAW 158 (MP)

Raj Kumar Mandnani v. Pradeep Khilvani

2012-02-02

TARUN KUMAR KAUSHAL

body2012
ORDER : Tarun Kumar Kaushal, J. This petition has been preferred by petitioner/accused seeking a relief to recall order dated 18.7.2011 passed by this Court in M.Cr.C. No. 12543/2010 granting special leave to appeal u/s 378(4) of the Code of Criminal Procedure, 1973. Facts of the case, in short, are that on the basis of incident of cheque bounce in respect of cheque No. 922838, dated 26.12.2004 of Rs. 1 lac, a complaint u/s 138 of the Negotiable Instruments Act (in short “the N.I. Act”) was instituted. Vide judgment dated 21.1.2010 passed by J.M.F.C., Satna convicted the petitioner u/s 138 of the N.I. Act and sentenced to one year R.I. and directed the petitioner to pay the compensation of Rs. 1,50,000/- to the respondent. Aforesaid order of Magistrate was assailed by the petitioner in appeal. Vide judgment dated 2.11.2010 passed by VI Additional Sessions Judge, Satna in Criminal Appeal No. 29/2010 acquitted the petitioner of the charges by setting aside the judgment of Magistrate and allowed the appeal accordingly. 2. Challenging the aforesaid order respondent/complainant preferred a Revision 1916/2000 in this Court. Vide order dated 29.11.2010, this Court allowed I.A. No. 20076/2010 of the respondent and permitted the revision to be converted as a miscellaneous criminal case No. 12543/2010. 3. Vide impugned order after perusal of the record of the Courts below leave to appeal has been granted to the respondent to prefer the appeal against order of acquittal passed by Appellate Court. 4. In present petition, the petitioner/accused has highlighted many irregularities and illegalities in the proceedings and requested to recall the order on following grounds: (1) There is no provision to convert a criminal revision into the miscellaneous criminal case hence order dated 19.11.2010 is not sustainable. (2) Though by way of amendment in place of Sections “397/401 of Cr.P.C.” provision has been mentioned “378(4) of Cr.P.C.” similarly and the word 'petition' has been substituted in place of 'revision' at four places in the main petition. Prayer clause has not been amended to seek the relief of grant of special leave. Meaning thereby leave has been granted without making any specific prayer by the complainant with hearing the accused. 5. Prayer clause has not been amended to seek the relief of grant of special leave. Meaning thereby leave has been granted without making any specific prayer by the complainant with hearing the accused. 5. It is submitted by learned Counsel for the petitioner that though as per provision of Section 362 of Cr.P.C. normally Courts are not supposed to review its upon orders however in view of the observation of the Hon'ble Apex Court in Vishnu Agarwal Vs. State of U.P. and Another, AIR 2011 SC 1232 , nothing prevents the High Court to recall its own order in the interest of justice. 6. Placing reliance on 2005(1) Crimes 93 (SC), J.J. Merchant v. S.N. Chaturvedi and Another, it is submitted that while the High Court issued the notice to accused before grant of leave, then in view of the judicial propriety, it is required at a subsequent stage to see that accused was served and heard before grant of leave or not. 7. Placing reliance on 1997 Crl. L.J. 2815 (MPHC), State of M.P. v. Bhura alias Kamal, it is submitted by learned Counsel for the petitioner that for seeking leave to file appeal against acquittal this has to be a separate application before the Court. 8. Before entertaining appeals following provisions of Cr.P.C are important to consider... Section 372. No appeal to lie unless otherwise provided.--No appeal shall lie from any judgment of order of a Criminal Court except as provided for by this Code or by any other law for the time being in force: [Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.] 378. Appeal in case of acquittal. Appeal in case of acquittal. (1) Save as otherwise provided in Sub-section (2), and subject to the provisions of Sub-sections (3) and (5), (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in 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 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 Sessions 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 Sessions in revision]. (3) [No appeal to the High Court] 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) No application under Sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (5) No application under Sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If in any case, the application under Sub-section (4) for the grant of special leave, to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall be under Sub-section (1) or under Subsection (2.). 385. Procedure for hearing appeals not dismissed summarily. (1) If the Appellate Court does not dismiss the appeal summarily, it shall cause notice of the time and place at which such appeal will be heard to be given-- (i) to the appellant or his pleader; (ii) to such officer as the State Government may appoint in this behalf, (iii) if the appeal is from a judgment of conviction in a case instituted upon complaint, to the complainant; (iv) if the appeal is u/s 377 or Section 378, to the accused, and shall also furnish such officer, complainant and accused with a copy of the grounds of appeal. (2) The Appellate Court shall then send for the record of the case, if such record is not already available in that Court and hear the parties: Provided that if the appeal is only as to the extent or the legality of the sentence, the Court may dispose of the appeal without sending for the record. (3) Where the only ground for appeal from a conviction is the alleged severity of the sentence, the appellant shall not except with the leave of the Court urge or be heard in support of any other ground. 9. Aforesaid provisions empower the Courts to exercise discretion to have proper check and control on the judgments of acquittal also. On the appeals of the victims hearing is permissible. Opportunity of hearing to the accused in appeal against acquittal filed by the victims, as a matter of right, is available at the stage of Section 385 of Cr.P.C. 10. At the stage of hearing for granting special leave to appeal against the order of acquittal in the High Court in complaint case, opportunity of hearing to accused is not necessary. At the stage of hearing for granting special leave to appeal against the order of acquittal in the High Court in complaint case, opportunity of hearing to accused is not necessary. By hearing the complainant, his Counsel and by perusal of record satisfaction can be recorded. Insofar as carelessness of complainant in drafting of the petition is concerned, in view of the facts and circumstances of the present case, it can best be ignored. 11. If record of the Courts below was available at the time of consideration of matter of grant of leave to appeal and order has been passed after perusal of record, then grant of leave would not amount to cause any prejudice to the accused. In absence of any such specific application or in view of the fact that clause of the prayer was not happily worded, order of granting leave will not vitiate the proceeding. 12. Crux of the matter is that in a case of N.I. Act, Appellate Court, setting aside the conviction, acquitted the accused, then order of acquittal is required to be examined by the High Court. Order of acquittal will not be disturbed or set aside without hearing the accused/appellant. Merely granting leave to file appeal without hearing the accused will not render the order defective or illegal. 13. Appeal is still pending at the stage of admission. Appellant/accused has every opportunity and right of hearing. There appears no instance of abuse of process or miscarriage of notice. This petition u/s 482 of Cr.P.C. has no substance. No case for recall of order granting special leave is made out, petition is dismissed.