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2016 DIGILAW 1133 (RAJ)

Yuvraj Mehta v. State of Rajasthan

2016-08-04

PRASHANT KUMAR AGARWAL

body2016
ORDER : Prashant Kumar Agarwal, J. The petitioner-complainant has filed this Criminal Revision Petition under Section 397 read with Section 401 Cr.P.C. against the order dated 15.1.2015 passed by the Additional Sessions Judge No. 11, Jaipur Metropolitan, Jaipur in Criminal Appeal No. 12/2014 whereby the learned Court below dismissed the appeal filed by the petitioner as not maintainable before it. 2. The question involved in this petition is "In a case instituted upon a complaint, whether the complainant is entitled to challenge the judgment of acquittal of the accused recorded by a Magistrate by filing an appeal before Sessions Court under the proviso to Section 372 Cr.P.C. or that such acquittal can be assailed only by bringing a Special Leave to Appeal to the High Court under Section 378 (4) Cr.P.C." 3. Brief relevant facts for the disposal of this petition are that the petitioner filed a complaint for an offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter to be referred as 'the Act') against the respondent-accused before the Court of Metropolitan Magistrate No. 17, Jaipur Metropolitan, Jaipur which was registered as Criminal Case No. 4313/2012 and after trial the respondent was acquitted by the learned trial Court vide judgment and order dated 22.5.2014. The aforesaid order of acquittal was challenged by the petitioner by way of an appeal under the proviso to Section 372 Cr.P.C. before the learned Additional Sessions Judge and during the course of pendency of the appeal respondent filed an application with a prayer that the appeal filed by the petitioner before that Court is not maintainable. Learned Court below after hearing both the parties allowed the application filed by the respondent-accused and dismissed the appeal vide impugned order as already stated. 4. It was submitted by the learned counsel for the petitioner that the petitioner was entitled to challenge the order of acquittal of the respondent by way of an appeal as provided under proviso to Section 372 Cr.P.C. as the petitioner-complainant is also a "victim" within the meaning of Section 3 (wa) Cr.P.C. as he suffered financial loss as a result of dishonor of cheque in dispute. Inviting attention of the Court towards principle No. (iii) laid down by a Division Bench of Rajasthan High Court in the case of Dhanne Singh v. State of Rajasthan reported in 2015 WLC (Raj.) UC 640, learned counsel for the petitioner submitted that those victims of complaint cases whose right to appeal have been recognised under proviso to Section 372 Cr.P.C., are not required to seek leave or special leave to appeal" from the High Court in the manner contemplated under Section 378 (3) and (4) of the Code of Criminal Procedure. According to learned counsel for the petitioner if special leave to appeal is not required to be obtained from the High Court, appeal under proviso to Section 372 Cr.P.C. is maintainable before Court of Session against the order of acquittal passed by the Court of a Magistrate in a complaint case also. 5. In support of his submissions, learned counsel for the petitioner, apart from the aforesaid case, also relied upon the cases of Laxmilal Menariya & Ors. v. Rajendra Kumar & Ors. reported in 2012 (4) Cr.L.R.(Raj.) 2015, Govind Singh v. Rajesh Automobiles reported in 2013 (3) DCR 60 Rajasthan High Court) and Mahesh Kumar Sinha v. The State of Jharkhand reported in 2013 (2) DCR 538 (Jharkhand High Court). 6. On the other hand, learned counsel for the respondent-accused inviting attention of the Court towards principle No. (ii) laid down by the Division Bench of this High Court in the aforesaid case of Dhanne Singh v. State of Rajasthan, submitted that the complainant in a complaint case who is also a 'victim' shall have remedy of appeal against acquittal under Section 378(4) only, except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an inadequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372 of the Code of Criminal Procedure. It was further submitted by the learned counsel for the respondent that if the petitioner-complainant considers himself a victim also as defined under Section 2 (wa) even then as per the principle of law laid down by the Division Bench the only remedy available to him to challenge the acquittal of respondent is under Section 378(4) Cr.P.C. It was also submitted that although in the case of Subhash Chand v. State (Delhi Administration) reported in (2013) 2 SCC 17 , the proviso to Section 372 Cr.P.C. as inserted in the Code of Criminal Procedure by way of amendment in the year 2009 was not directly under consideration before the Hon'ble Supreme Court but in that case it has specifically been held by the Hon'ble Court that in a complaint case appeal against acquittal can lie under Section 378(4) Cr.P.C. after seeking Special Leave to Appeal from the High Court and it was further held that complainant cannot file appeal in Sessions Court against an order of acquittal. 7. I have considered the submissions made on behalf of the respective parties. 8. The question involved in this petition was referred for decision to Division Bench of this High Court in the case of Dhanne Singh v. State of Rajasthan (supra) and the learned Division Bench after relying on the case of M/s. Tata Steel Ltd. v. M/s. Atma Tube Products Ltd. & Ors. reported in 2013 (2) RCR (Criminal) 1005 (Full Bench) (Punjab & Haryana High Court), has laid down the following principles of law: (i) The 'complainant' in a complaint-case who is also a 'victim' and the 'victim' other than a 'complainant' in such case, shall have remedy of appeal against acquittal under Section 378 (4) only, except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an inadequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372 of the Code. (ii) The 'victim', who is not the complainant in a private complaint-case, is not entitled to prefer appeal against acquittal under proviso to Section 372 and his/her right to appeal, if any, continues to be governed by the un-amended provisions read with Section 378(4) of the Code. (ii) The 'victim', who is not the complainant in a private complaint-case, is not entitled to prefer appeal against acquittal under proviso to Section 372 and his/her right to appeal, if any, continues to be governed by the un-amended provisions read with Section 378(4) of the Code. (iii) those 'victims' of complaint-cases whose right to appeal have been recognised under proviso to Section 372, are not required to seek 'leave' or 'special leave' to appeal from the High Court in the manner contemplated under Section 378(3) & (4) of the Code. (iv) The right conferred on a 'victim' to present appeal under proviso to Section 372 is a substantive and independent right which is neither inferior nor contingent upon the filing of appeal by the State in that case. Resultantly, the condition of seeking 'leave to appeal' or 'special leave to appeal' as contained in Section 378(3) & (4) cannot be imposed for the maintainability of appeal by a 'victim' under proviso to Section 372 of the Code. 9. As per the principle No. (i) the complainant in a complaint case who is also a victim and the victim other than a complainant in such a case, shall have remedy of appeal against acquittal under Section 378 (4) only. It is thus, clear that if in a complaint case the accused is acquitted and even if complainant is a victim also even then the remedy against the order of acquittal is under Section 378 (4) Cr.P.C. only and not under proviso to Section 372 Cr.P.C. as submitted by learned counsel for the petitioner. It is thus, clear that if in a complaint case the accused is acquitted and even if complainant is a victim also even then the remedy against the order of acquittal is under Section 378 (4) Cr.P.C. only and not under proviso to Section 372 Cr.P.C. as submitted by learned counsel for the petitioner. Merely because as per principle No. (iii) laid down by the learned Division Bench those victims of complaint cases whose right to appeal have been recognised under proviso to Section 372 Cr.P.C. are not required to seek leave or special leave to appeal from the High Court in the manner contemplated under Section 378 (3) and (4) of the Code of Criminal Procedure, it cannot be accepted that in such a case the complainant has a right to file appeal under proviso to Section 372 Cr.P.C. In the view of this Court at the most the meaning of principle No. (iii) can be that if a complainant files an appeal under proviso to Section 372 Cr.P.C. feeling aggrieved with the conviction for a lesser offence or imposition of an inadequate compensation, he is not required to seek leave or special leave to appeal from the High Court in the manner contemplated under Section 378 (3) and (4) of the Code of Criminal Procedure. 10. A learned Division Bench of Chhatisgarh High Court in the case of Kailash Murarka v. K. Geet Srijan reported in 2015 Cr.L.J. 1627, also considered the same question as involved in this petition and after elaborately dealing with the relevant provisions and the case law it was held by it as follows: "Section 378 (4) of the Code is a special provision, dealing specifically with appeal by complainant in case of acquittal of accused in complaint cases, and as such it will have overriding as well as exclusive application and effect in cases of acquittal of accused in cases instituted upon complaint. Section 378 (4) of the Code lays twin criteria for tenability of appeal that it should be filed in the High Court and that the appeal will lie after obtaining special leave. Section 378 (4) of the Code lays twin criteria for tenability of appeal that it should be filed in the High Court and that the appeal will lie after obtaining special leave. As a corollary it flows that complainant will not be entitled to prefer an appeal under proviso to Section 372 of the Code before the Court of Session against the judgment of acquittal passed by subordinate criminal court arising out of criminal complaint filed by the complainant, he will be required to prefer an appeal under Section 378 (4) of the Code before the High Court after obtaining leave. Even otherwise, in cases instituted upon complaint, the complainant has much role in the court proceedings and as is apparent from the Statement of Object and Reasons Act No. 5 of 2009 which amended the Code, changes have been brought with a view to give certain rights and compensation to the victims who do not have much role in the court proceedings. Therefore also, the incorporation of proviso to Section 372 of the Code by Act No. 5 of 2009, providing right of appeal to the victim, will not come to the aid those victims who are complainants having much role in the court proceedings." "Thus, it could be said that the complainant is not entitled to prefer an appeal under proviso to Section 372 of the Code before the Court of Session against the judgment of acquittal passed by subordinate criminal court arising out of criminal complaint filed by complainant. The remedy for the complainant is to prefer an appeal under Section 378 (4) of the Code before the High Court after obtaining special leave." 11. Similarly, a learned Division Bench of Kerala High Court in the case of Omana Jose v. State of Kerala reported in 2015 Cr.L.J. 2784, has held that the complainant cannot challenge the order of acquittal passed by a Magistrate for an offence under Section 138 of the Act before Sessions Court under proviso to Section 372 Cr.P.C. and his remedy is to file an appeal to the High Court with Special Leave under Section 378 (4) of the Code. 12. 12. It is thus clear that the petitioner-complainant was not legally entitled to challenge the order of acquittal of the respondent in the present case by way of an appeal under proviso to Section 372 Cr.P.C. and the learned Court below has rightly dismissed his appeal as not maintainable. Consequently, the revision petition being devoid of any merit is, hereby, dismissed.