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2018 DIGILAW 191 (CAL)

Usha Fan Industries v. Lakshmi Kanta Chowdhury

2018-01-30

SIDDHARTHA CHATTOPADHYAY

body2018
JUDGMENT : SIDDHARTHA CHATTOPADHYAY, J. The instant criminal appeal emanates from the judgment and order of acquittal dated 16.04.2013 passed by the Judicial Magistrate 9th Court Alipore, in complaint case No. 11113 of 2007 whereby and where under the learned Magistrate has passed an order of acquittal in favour of the accused opposite party. 2. According to the appellant, the learned trial court failed to appreciate the evidence and position of law in its proper perspectives. The learned trial court has mainly relied on the version of the accused and ignored the complaint case and the judgment is written without any application of mind. 3. The learned Counsel appearing on behalf of the opposite party accused contended that the learned trial court has considered all the material aspects and it does not call for any interference. 4. At the time of hearing, at the very outset learned Counsel appearing on behalf of the accused/opposite party submitted that the instant appeal is not maintainable. He contended that in view of the present position of law the appellant ought to have filed the appeal under Section 372 of Cr.P.C. and not under Section 378(4) of Cr.P.C. He further submitted if the appeal itself is not maintainable in that case argument in regard to other matters is inconsequential. 5. Learned Counsel appearing on behalf of the petitioner submits that the appeal is very much maintainable in view of plethora of decision. He relied on the decisions reported in (1) Subhas Chand v. State (Delhi Administration) reported in (2013) 2 C.Cr.L.R. (SC) 151, (2) Sri. Chandan Mukherjee v. Pankaj Kumar Behera reported in (2017) 2 C.Cr.L.R. (Cal) 406, (3) M.K. Products v. BLUE OCEN RXPORTS (P) Ltd. reported in (2017) 2 C.Cr.L.R. (Cal) 202, (4) Roopendra Singh v. State of Tripura reported in JT 2017 (4) SC 1, (5) Ram Phal v. State (Server copy from official web of Delhi High Court), (6) Satya Pal Singh v. State of M.P. reported in (2016) 3 C.Cr.L.R. (SC) 291, (7) Kaushalya Rani v. Gopal Singh reported in AIR 1964 SC 260 , (8) Nirmal Kumar Batabyal v. The State of West Bengal reported in (2016) 2 C.Cr.L.R. (Cal) 534. 6. 6. Learned Counsel appearing on behalf of the accused opposite party relied on the unreported decision passed by a co-ordinate bench in connection with C.R.R. 3048 of 2016, C.R.R. 3049 of 2016, C.R.R. 3433 of 2016, C.R.R. 3108 of 2016. He contended that after analysing the relevant legal positions, the said co-ordinate bench had sent the matter to the larger bench because there are some divergent views passed by the other coordinate benches. So he has submitted that this court should also wait till the referred matter is disposed of by the larger bench. 7. Learned Counsel Mr. Sekhar Basu argued that the judgment on which the respondent relied, does not hold water. He argued that the decision of Subhas Chand v. State (Delhi Administration) still holds the field and the interpretation of that co-ordinate bench in regard to the decision of Subhas Chand is not the correct position of law. 8. In such circumstances, it appears to me that this court is called upon to answer if a complainant wants to file an appeal against order of acquittal or lesser sentence whether he would come under the provision of Section 378(4) of Cr.P.C., or if a person being a victim of the crime wants to prefer an appeal against acquittal, whether he would prefer an appeal only under Section 372 of Cr.P.C.? Whether a complainant who is also a victim can file an appeal under Section 378(4) of Cr.P.C. or Under Section 372 of Cr.P.C. 9. Whether a complainant who is also a victim can file an appeal under Section 378(4) of Cr.P.C. or Under Section 372 of Cr.P.C. 9. In the decision reported in (2017) 2 C.Cr.L.R. Calcutta 406 in connection with Chandan Mukherjee v. Pankaj Kumar Behera a coordinate bench (Tapash Mookherjee, J.) relied on the decision of Subhas Chand case and 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 of Cr.P.C., another co-ordinate bench (Sankar Acharyya, J.) has come to a conclusion that the complainant in a case under Section 138 of N.I Act cannot challenge the order of acquittal before the Sessions Court under the proviso of Section 372 of Cr.P.C. and his remedy is only to file an appeal before the High Court with special leave under Section 378(4) of the Cr.P.C. The said co-ordinate bench had relied on the decision of Omana Jose v. State of Kerala Hon'ble Justice Joymalya Bagchi while dealing with C.R.R. 3048 of 2016 with three other revisional application, has considered the legal position of pre-independence era to the latest development including the amendment made in 2009. He has also clarified who can be called as a victim. But after a thread bare discussion the co-ordinate bench (Joymalya Bagchi, J.) held the pre-existing right of appeal of a complainant under Section 378 of Cr.P.C. cannot obliterate the right of appeal vested in a victim under the proviso to Section 372 of Cr.P.C. in a complaint case. He has also clarified who can be called as a victim. But after a thread bare discussion the co-ordinate bench (Joymalya Bagchi, J.) held the pre-existing right of appeal of a complainant under Section 378 of Cr.P.C. cannot obliterate the right of appeal vested in a victim under the proviso to Section 372 of Cr.P.C. in a complaint case. He held that a victim of crime has a right to prefer an appeal against an order of acquittal or conviction for lesser offences even in a complaint case under proviso under Section 372 of Cr.P.C. notwithstanding the pre-existing right of a complainant to prefer an appeal against acquittal under Section 378(4) of Cr.P.C. After a thread bare discussion the co-ordinate bench (Joymalya Bagchi, J.) opined that the complainant may either in his capacity as a victim prefer an appeal against acquittal before the Court of sessions (where the appeal against conviction) ordinarily lie in a magistrate triable case or he may as a complainant approach the High Court to prefer an appeal after seeking leave in terms of Section 378(4) of Cr.P.C. Therefore, the existence of twin remedies are there and the appellant has to select either of the two. Therefore, it can be summed up in this fashion that in a case where a victim, who has lodged the complainant wants to prefer an appeal, he has to file it before the learned Sessions Judge and simultaneously if the complainant has filed another appeal under Section 378(4) of Cr.P.C. in that case High Court may exercise its powers under Section 407 of Cr.P.C., and he has to take recourse to under Section 372 of Cr.P.C. in addition to the appellate remedy under Section 378(4)(5) of Cr.P.C. 10. In the instant case, the complainant has preferred this appeal under Section 378(4) of Cr.P.C. by taking special leave from the High Court and, therefore, the appeal is very much maintainable. He did not come here as a victim only. 11. Practically no argument has been advanced by the learned Counsel appearing on behalf of the opposite party accused in regard to evidence. After going through the evidence, it appears that the accused opposite party is in the quarter of the appellant even after his retirement. The accused had taken a plea that his retiral benefits were not given to him and for which he has a right to remain there. After going through the evidence, it appears that the accused opposite party is in the quarter of the appellant even after his retirement. The accused had taken a plea that his retiral benefits were not given to him and for which he has a right to remain there. The accused has also taken plea that there was terms and conditions to retain the quarter allotted to him by the company while he was in his service. It appears that by issuing cheques bearing no. 545987 and 202429 amounting to Rs. 77,884/- each were issued in the name of the present accused opposite party. Under which capacity the accused is still there was supposed to be established by the accused opposite party himself. Even after a decade of his retirement he is there and thereby depriving the other employees to occupy it. Therefore, an offence under Section 630 of Companies Act is clearly spelt out and proved by the complainant. 12. Accordingly the judgment of acquittal passed by the learned Judicial Magistrate, 9th Court at Alipore, is hereby set aside. The accused opposite party is found guilty for having committed the offence under Section 630 of Companies Act and he is sentenced to pay a fine of Rs. 1,000/- in default to suffer simple imprisonment 30 days and also to vacate the premises in question within 30 days from this date failing which he is to suffer simple imprisonment for two years. The learned trial court shall take steps so that the accused serves out the sentence. 13. Let a copy of this order and LCR be sent to the learned Magistrate 9th Court, at Alipore at once for information and also for strict compliance. 14. Urgent certified photocopy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.