Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 253 (CAL)

Chandan Mukherjee v. Pankaj Kumar Behera

2017-03-06

TAPASH MOOKHERJEE

body2017
JUDGMENT : Tapash Mookherjee, J. The present Revisional Application under Section 401 Read with Section 482 of the Criminal Procedure Code (in short, Cr. P. C.) is against the order dated 12.08.2013, passed by the learned Additional Sessions Judge, Sealdah, South 24 Parganas in Criminal Appeal No. 5 of 2013 by which the order of acquittal dated 31.12.2012 passed by the learned Judicial Magistrate, 1st Court, Sealdah in complaint case No. 235 of 2010 was reversed and the accused in the complaint case, who is the Petitioner herein, was found guilty of the offence punishable under Section 138 of the Negotiable Instruments Act, (in short, N.I. Act) and sentenced to suffer Simple Imprisonment for one month and to pay compensation of Rs. 86,000.00 (rupees eighty-six thousand only), in default, to suffer Simple Imprisonment for one month more. 2. The facts behind the Revisional Application, may be briefly summarised as follows: 3. Both the Petitioner and the Opposite Party No. 1 herein deal in Computer and during their usual course of business Opposite Party No. 1 supplied some goods to the Petitioner and in discharge of the liability, in part, the Petitioner issued three cheques on 18.01.2010 for a total amount of Rs. 43,000.00 (rupees forty-three thousand only) in favour of the Opposite Party No. 1. Subsequently, on presentation in the Bank by the Opposite Party No. 1, all those three cheques were returned unpaid for insufficiency of fund in the account of the Petitioner. O.P. No. 1 thereafter issued demand notice for the payment against those bounced cheques but the Petitioner did not make any payment. Hence, O.P. No. 1 lodged a complaint under Section 138 of the N.I. Act, to the Court of Learned Additional Chief Judicial Magistrate at Sealdah and the complaint was registered as C. Case No. 235 of 2010. Considering the evidence produced by the parties during the trial, the Trial Court found the Petitioner 'not guilty' of the offence under Section 138 of the N.I. Act and acquitted him accordingly. Against such order of acquittal Opposite Party No. 1 filed an appeal in the Court of learned Additional Sessions Judge at Sealdah, registered as Criminal Appeal No. 05 of 2013. Against such order of acquittal Opposite Party No. 1 filed an appeal in the Court of learned Additional Sessions Judge at Sealdah, registered as Criminal Appeal No. 05 of 2013. After hearing the parties the Appellate Court reversed the finding and decisions of the Trial Court, found the Petitioner guilty of the offence under Section 138 of the N.I. Act and passed sentence of imprisonment as well as an order of compensation to the Opposite Party No. 1, against the Petitioner herein. Being aggrieved by such judgment and order of the learned Additional Sessions Judge, Sealdah, 24 Parganas (South), the accused in the Trial Court filed the present Revisional Application. The Revisional Application has been contested by the Opposite Party No. 1 who was the complainant in the Trial Court. 4. In the Revisional Application several points have been raised to assail the findings and decisions of the Appellate Court. But during the hearing of the Revisional Petition, learned Advocate Mr. Mitra appearing for the Petitioner confined his argument on a point of law only which will be discussed hereinafter. 5. According to Mr. Mitra, Proviso to Section 372 Cr.P.C. introduced by the Act 5 of 2009 (with effect from 13.12.2009) is applicable only when the victim files an appeal against any order of acquittal or against an order of conviction for a lesser offence or allowing inadequate compensation. It is his further contention that Proviso to Section 372 Cr.P.C. should not be read in isolation and it has to be considered along with the provisions in Section 378 (3) and 378 (4) Cr.P.C. The sum and substance of the argument of Mr. Mitra is that an appeal against an order of acquittal in any case instituted upon complaint shall lie only in the High Court if special leave for such appeal is granted under Section 378 (4) Cr.P.C. So, according to Mr. Mitra, the Sessions Judge or the Additional Sessions Judge has no jurisdiction to entertain the appeal in the present case, as the present case under Section 138 of the N.I. Act is a case instituted upon a complaint and hence the order dated 30.04.2010 passed by the learned Additional Sessions Judge, Sealdah in Criminal Appeal No. 05 of 2013 is not sustainable in law. Mr. Mitra has cited the following decisions in support of his contention. Mr. Mitra has cited the following decisions in support of his contention. 2016 (1) AICLR 7 (S. C.), (Satya Pal Singh v. State of M. P. and Ors.); (2013) 2 C Cr LR (SC) 151 (Subhas Chand v. State (Delhi Administration)); 2016 (3) AICLR 661 (Cal), (Nirmal Kumar Batabyal v. State of West Bengal & Anr.); 2011 (3) Crimes 699 (Bom.), (M/s. Top Notch Infotronis (I) Pvt. Ltd. v. M/s. Infosoft Systems & Ors.); 2016 (3) AICLR 767 (Pb. & Hry) (Ashok Kumar v. Jagdish Ram alias Jagdish Rai); 2016 (4) AICLR 626 (Cal.), (M. K. Products v. Blue Ocean Exports (P) Ltd. & Ors.). 6. In reply, learned Advocate Mr. Das appearing for the O.P. No. 1 has argued that in a case under Section 138 of the N.I. Act, the complainant is a victim also. Proviso to Section 372 Cr.P.C. introduced by amendment in the year 2009 has given a victim the right to file an appeal against an order of acquittal to the Court, to which an appeal ordinarily lies against the order of conviction of such Court. In a case under Section 138 of the N.I. Act an appeal against an order of conviction ordinarily lies in the Sessions Court. So, the Sessions Court or the Additional Sessions Court as the case may be, is legally empowered to hear an appeal against an order of acquittal like the present case. Mr. Das has also cited a decision reported in (2013) 1 C Cr LR (Cal) 871, (National Plywood Industries & Ors. v. State of West Bengal). 7. The Provision in Section 372 Cr.P.C. reads as follows:- 372. No appeal to lie unless otherwise provided. - No appeal shall lie from any judgment or 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 ordinary lies against the order of conviction of such Court. 8. Section 378 Cr.P.C. reads as follows :- 378. Appeal in case of acquittal. 8. Section 378 Cr.P.C. reads as follows :- 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),- (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 cognisable 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 cognisable 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 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. (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. (6) If, 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 lie under sub-section (1) or under subsection (2). 9. The main controversy in this case is, which is the appropriate legal forum to present an appeal against an order of acquittal passed in a case under Section 138 of the N.I. Act, instituted upon complaint? 10. In Satya Pal's case (supra) the Apex Court has laid down some rules of interpretation in connection with a 'Proviso' to a statute. In para 11 of the judgment it has been stated that Proviso of a statute must be given an interpretation limited to the subject matter of the enacting provision. It has been further held in para 13 of the judgment that Proviso to Section 372 of Cr.P.C. should be read conjointly with some provisions of Section 378 Cr.P.C. and it has been decided therein that "the right of questioning the correctness of the judgment and order of acquittal by preferring an appeal to the High Court is conferred upon the victim including the legal heir and others, as defined under Section 2 (W-a) of Cr. P. C., under Proviso 2 Section 372, but only after obtaining the leave of the High Court as required under Sub-section (3) to Section 378 Cr.P.C. ". However, the issue before the Apex Court was different from the issue involved in the present case. 11. The controversy in the Subhas Chand's case (supra) is almost identical to the controversy in the present case. However, the issue before the Apex Court was different from the issue involved in the present case. 11. The controversy in the Subhas Chand's case (supra) is almost identical to the controversy in the present case. In the said case the Apex Court has clearly held that an appeal against an order of acquittal in a case instituted upon complaint can be filed only in the High Court after obtaining special leave to appeal under Sub-section (4) of Section 378 Cr.P.C. and the complainant cannot filed an appeal against an order of acquittal passed by a Magistrate in a case instituted upon complaint, before the Sessions Court. 12. Having relied upon the decision in Subhas Chand's case (supra) a Single Bench of the Bombay High Court, in M/s Top Notch Infotronis (I) Pvt Ltd.'s case (supra) has held that the Proviso to Section 372 Cr.P.C. does not in any way affect and the provisions of Section 378 (4) Cr.P.C. That case was a case under Section 138 of the N.I. Act, wherein an order of acquittal was passed by the Magistrate. The said order of acquittal was challenged in the High Court and a preliminary objection was raised to the effect that such an appeal should be filed in the Court of Sessions. But after hearing both the parties the High Court held that the appeal against an order of acquittal passed by the Magistrate in a case under Section 138 of the N.I. Act lies only in the High Court. A similar view was expressed also by a Single Bench of the Punjab and Haryana High Court in Ashok Kumar's case (supra). The said judgment was also passed on the principle laid down in Subhas Chand's case (Supra). 13. A similar controversy was raised recently before a Single Bench of this High Court in M. K. Product's case (supra). A similar view was expressed also by a Single Bench of the Punjab and Haryana High Court in Ashok Kumar's case (supra). The said judgment was also passed on the principle laid down in Subhas Chand's case (Supra). 13. A similar controversy was raised recently before a Single Bench of this High Court in M. K. Product's case (supra). In that case it has been discussed that it cannot be the intention of the legislators to provide two concurrent forums for appeal against acquittal, and in a case, where the complainant is a victim also and in that case the Single Bench of this High Court having relied upon the Subhas Chand's case (supra) as well as Omana Jose's case 2014 (3) AICLR 687, (Omana Jose v. State of Kerala), has held that an appeal against an order of acquittal passed in a case under Section 138 of the N.I. Act lies in the High Court only if special leave is granted for such appeal under Section 378 (4) Cr. P. C. 14. Nirmal Kumar Batabyal's case (supra) was a case instituted upon a police report and as such different issue was involved in that case. 15. In National Plywood Industries's case (supra) a Single Bench of this High Court has held that a complainant is the victim also in a cheque bouncing case. So, the complainant in such a case can file an appeal against an order of acquittal passed by the Magistrate, in the Sessions Court. However, Subhas Chand's case (supra) was neither cited nor considered in that case. 16. As discussed earlier in the Subhas Chand's case (supra) the Apex Court has clearly held that an appeal against an order of acquittal in a case instituted upon complaint can be filed only in the High Court, if special leave for such appeal is granted under Sub-section (4) of Section 378 Cr.P.C. No judgment of the Apex Court in contrary to such view has been cited on behalf of the O.P. No. 2. So, having relied upon the aforesaid judgment, I have no hesitation to hold that an appeal, against an order of acquittal passed by the Magistrate in a case under Section 138 of the N.I. Act, lies only in the High Court, if special leave for such appeal is granted by the High Court, under Section 378 (4) Cr.P.C. and as such Sessions Court has no jurisdiction to entertain such appeal. Learned Additional Sessions Judge, Sealdah, therefore, committed error in law by entertaining the appeal and convicting the present Petitioner of the offence under Section 138 of the N.I. Act. The judgment and order of conviction and sentence dated 12.08.2013 passed by the learned Additional Sessions Judge, Sealdah in Criminal Appeal No. 05 of 2013 are, therefore, set aside. The Petitioner herein is found not guilty of the offence under Section 138 of the N.I. Act and acquitted accordingly. Bail bond, if any, furnished by him stands discharged. The Petitioner may withdraw the amount of Rs. 25,000.00 (rupees twenty-five only) deposited by him in compliance with the order in the case, dated 13.09.2013 and 20.01.2014. The Revisional Application is accordingly allowed on contest without any order as to costs. 17. Urgent certified photocopy of this judgment, if applied for, be supplied to the learned Counsels for the parties upon compliance of all formalities. Revisional application is allowed.