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2015 DIGILAW 701 (KER)

RAJU STEPHEN D SOUZA v. ABDUL RAHMAN

2015-06-17

C.T.RAVIKUMAR

body2015
ORDER : C.T. Ravi Kumar, J. The petitioner filed this petition seeking leave to prefer an appeal against the judgment dated 03/01/2014 passed by the Court of Additional Sessions Judge-II, Kasargode in Crl A No. 93/2012. The petitioner filed a private complaint alleging commission of offence under Section 138 of the Negotiable Instruments Act against the first respondent in the unnumbered LP and the same was taken on file and registered as CC No. 222/2009. After the trial the accused therein was acquitted under Section 255(1) of the Code of Criminal Procedure. Aggrieved by the same the petitioner preferred Crl A No. 93/2012. As per the judgment sought to be impugned the Appellate Court dismissed the appeal confirming the order of acquittal. It is in the said circumstances that this leave petition has been filed for the purpose of assailing the said judgment in the appeal. The Registry raised an objection to the effect that since the petitioner has already filed Criminal Appeal No. 93/2012 before the Sessions Court, Kasargode and the second appeal will not lie. The learned counsel for the petitioner submitted that in view of the decision of the Division Bench of this Court in Omana Jose Vs. State of Kerala, an appeal could not have been maintained before the Sessions Court against an order of acquittal passed by the learned Magistrate in a case instituted upon a complaint and the case on hand was one for prosecution for the offence under Section 138, NI Act instituted on a complaint. It is to be noted that the said decision was rendered by the Division Bench of this Court on 11/04/2014 and, in fact, much prior to that date the petitioner had preferred an appeal against the order of acquittal in CC No. 222/2009 before the Sessions Court. In Crl A No. 93/2012 the impugned judgment was passed dismissing the said appeal and confirming the order of acquittal of the Trial Court, by the learned Sessions Judge on 03/01/2014. Thus, it is evident that the Appellate Court passed the judgment dismissing the appeal and confirming the order of acquittal much prior to the decision in Omana Jose' case. There cannot be any doubt with respect to the fact that, subsequent change in law owing to a declaration of law by a Court would not and could not efface the effect of earlier order passed by a competent Court. There cannot be any doubt with respect to the fact that, subsequent change in law owing to a declaration of law by a Court would not and could not efface the effect of earlier order passed by a competent Court. What was the position of law prevalent prior to the decision in Omana Jose' case is discernible from the said decision itself. Evidently, conflicting views were taken by two Single Judges of this Court on the question whether an appeal would lie to the Sessions Court under the proviso to Section 372, Cr.P.C. against an order of acquittal of an accused in a case under Section 138 of the Negotiable Instruments Act. The matter was referred to be decided by a Division Bench and the decision in Omana Jose' case was rendered on the said order of reference. In Sree Gokulam Chit and Finance Co. (P) Ltd. Vs. Damodaran N. and Another, a learned Single Judge held that an appeal would not lie before the Sessions Court against an order of acquittal in a case under Section 138 of NI Act under proviso to Section 372, Cr.P.C. and it would lie only before the High Court under Section 378(4), Cr.P.C.. Another learned Single Judge held in Shibu Joseph and Others Vs. Tomy K.J. and Others, that such an appeal would lie before the Sessions Court under proviso to Section 372 Cr.P.C.. It is thus obvious that the said question was settled by a Division Bench of this Court only as per the decision in Omana Jose' case and prior to that appeal was being filed and being entertained against an order of acquittal passed by Trial Court by Sessions Court under the proviso to Section 372 Cr.P.C.. Obviously, after considering the proviso to Sections 372 and 378(4) Cr.P.C. the Division Bench held that a complainant in a case under Section 138 of NI Act could not challenge the order of acquittal before the Sessions Court under proviso to Section 372, Cr.P.C. and his remedy would only be to file an appeal to the High Court with special leave under Section 378(4) Cr.P.C.. As noticed hereinbefore, in this Case, Crl A No. 93 of 2012 was filed against the order of acquittal passed by the Court of Judicial First Class Magistrate-II (Additional Munsiff), Kasaragod in CC No. 222 of 2009 and the appeal was dismissed confirming the said order of acquittal on 03/01/2014 and the law was settled on the aforesaid question by the Division Bench in Omana Jose' case only on 11/04/2014. In such circumstances, the contention of the petitioner that the judgment of the Court of Additional Sessions Judge-II Kasaragod in Crl A No. 93 of 2012 ought to be treated as a judgment rendered by an incompetent Court and therefore, to be treated as non est or nullity and the petition for leave filed under Section 378(4), Cr.P.C. to challenge the order of acquittal in CC No. 222 of 2009 should be entertained by this Court ignoring the judgment in Crl A No. 93 of 2012, is only to be rejected. I am of the view that in such circumstances, in case the petitioner feels aggrieved by the order of acquittal passed by the Trial Court in CC No. 222 of 2009 which was unsuccessfully taken in Crl A No. 93 of 2012 he has to resort to appropriate remedies available in law for challenging the judgment of the Appellate Court in Crl A No. 93 of 2012. If the contention of the petitioner is upheld necessarily, matters which were already attained finality were to be reopened holding previous judgments pronounced by Sessions Court in similar matters as either non est or nullity. Certainly, upholding the contention of the petitioner and entertaining the leave petition and permitting the petitioner to file an appeal against the order of acquittal in CC No. 222 of 2009 after entertaining leave petition will be having wider ramification and it would definitely lead to unsettlement of the settled cases. True that, in this case, the Appellate Court confirmed the order of acquittal passed by the Trial Court. At the same time, it is to be noted that it is not a case wherein the Appellate Court entertained an appeal against an order of conviction and then reversed the said findings and substituted it with a judgment of acquittal. True that, in this case, the Appellate Court confirmed the order of acquittal passed by the Trial Court. At the same time, it is to be noted that it is not a case wherein the Appellate Court entertained an appeal against an order of conviction and then reversed the said findings and substituted it with a judgment of acquittal. In such circumstances, the petitioner also cannot be heard to contend that this leave petition should be entertained to enable him to challenge the judgment in Crl A No. 93 of 2012 confirming the order of acquittal passed by the Trial Court after granting leave for entertaining the leave petition. Since Crl A No. 93 of 2012 was entertained by the Appellate Court at the time when the decision in Shibu's case (supra) was also in the field this Court cannot permit the petitioner to file a further appeal to the High Court after entertaining a petition under Section 378(4), Cr.P.C. treating the judgment of the Appellate Court in Crl A No. 93 of 2012 as non est or nullity. Since the said appeal was preferred against the order of acquittal no second appeal will lie and in such circumstances the petitioner has to work out his remedies, in accordance with law. In the said circumstances, the objection raised by the Registry is upheld and when faced with such situation the learned counsel for the petitioner submitted that the petitioner may be granted the benefit available under Section 14 of the Limitation Act. In the facts and circumstances of the case it is ordered that in case the petitioner files appropriate petition in appropriate proceedings to challenge the impugned orders, within two weeks from the date of receipt of a copy of this order he will be entitled to the benefit of the provision under Section 14 of the Limitation Act, to the extent it is available in law. The Registry is directed to return the file to the petitioner to enable him to work out his remedies in accordance with law.