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2023 DIGILAW 986 (KAR)

Neelakanta A. v. Jayashree V.

2023-08-17

RAJENDRA BADAMIKAR

body2023
JUDGMENT 1. This revision is filed by the accused challenging the judgment of conviction and order of sentence passed by the LXIV Additional City Civil & Sessions Judge(CCH-64), Bangalore in Criminal Appeal No.1798/2017 dtd.: 14/8/2019. 2. The brief factual matter is leading to the case are that the complainant had lodged a complaint against accusedrevision petitioner herein for the offence under Sec. 138 of Negotiation Instrument Act before the learned Magistrate. The learned Magistrate after taking cognizance issued process against the accused and accused appeared and he was enlarged on bail. The trial was conducted and the learned Magistrate after appreciating the oral and documentary evidence has acquitted the accused for the offence under Sec. 138 of NI act by exercising the powers conferred on whom under Sec. 255(1) of Cr.P.C. 3. This order of acquittal is challenged by the complainant-respondent herein before the LXIV Additional City Civil & Sessions Judge(CCH-64), Bangalore in Criminal Appeal No. 1798/2017. The learned Sessions Judge after appreciating the oral and documentary evidence has set aside the judgment of acquittal passed by the trial Court and allowed Criminal Appeal filed under Sec. 372 of Cr.P.C by convicting the accused for the offence under Sec. 138 of NI Act by imposing sentence of fine of Rs.8, 25, 000.00. Being aggrieved of this judgment of conviction and order of sentence passed by the lower Appellate Court, this Revision is filed. 4. Heard the arguments of learned counsel for the revision petitioner and respondent and perused the records. 5. The learned counsel for the revision petitioneraccused would contend that admittedly the complaint was filed under Sec. 200 of Cr.P.C for the offence under Sec. 138 of Negotiation Instrument Act. Since the penal provisions involved in the instant case are in respect of Sec. 138 of Negotiation Instrument Act and case is being instituted on a complaint, the order of acquittal required to be challenged under Sec. 378 (4) of Cr.P.C. But the complainant has approached Sessions Judge by using provision under Sec. 372 of Cr.P.C which is not permissible. Hence, he would seek for allowing the revision petition by setting aside impugned judgment of lower Appellate Court. 6. Hence, he would seek for allowing the revision petition by setting aside impugned judgment of lower Appellate Court. 6. Per contra, learned counsel for the respondent would contend that the definition of the victim includes the complainant and hence, under Sec. 372 of Cr.P.C, the victim has got every right to file an appeal before the Court, before whom ordinarily an appeal lies. Hence, he would contend that the learned Sessions Judge was having power. Hence, he would seek for rejection of revision petition. 7. Having heard the arguments and perusing the records it is evident that the complainant has filed a complaint under Sec. 200 of Cr.P.C, on the ground that the accused having availed a loan from complainant has issued two cheques for a sum of Rs.8, 00, 000.00 and when the said cheques were presented, they were bounced. Subsequently, the complainant has issued legal notice and when the amount was not returned, he lodged a complaint under Sec. 200 of Cr.P.C. 8. The learned Magistrate after recording the sworn statement of complainant has issued process and subsequently after trial, acquitted the accused for the offence under Sec. 138 of Negotiation Instrument Act. 9. Sec. 378(4) of Cr.P.C is reads as under: "Appeal in case of acquittal.- (1) xxxxx (2) xxxxx (3) xxxxx (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) xxxxx (6) xxxxx" In support of his contention the learned counsel for the petitioner has further placed reliance on a decision of Apex Court in the case of Subhash Chand Vs State (Delhi Admistration) reported in (2013) 2 SCC 17 and argues that when the case is instituted on a complaint and an order of acquittal is passed, the complainant can only file an appeal under Sec. 378 (4) of Cr.P.C and he cannot avail the benefit of provisions of Sec. 372. 10. 10. On the contrary, the learned counsel for the respondent placed reliance on a decision reported in the case of Surabhi Chits Limited Vs Ganshram T reported in ILR 2020 Karnataka page No. 196 and invited the attention of the Court to para 7, 8 and 9 and argues that the victim is defined under Sec. 2D of the Cr.P.C and that cannot be ignored. He would submit under Sec. 372 of Cr.P.C., the victim is entitled to challenge the order of acquittal or even improper sentence before the Court before whom ordinarily an appeal lies. He has also placed reliance on the decision of the Apex Court in the case of Mallikarjun Kodagali (Dead) represented though Legal Representatives Vs. State of Karnataka and Ors. reported in AIR 2018 SCC Page 206 and he invites the attention of the Court to observations made in paragraph No.9. 11. There is no dispute regarding the principles enunciated in the above cited decisions. But the citation relied by the learned counsel for the respondent in Surabhi Chits Limited Vs. Ganshyam, it is case of lodging an FIR and victim challenging the order under Sec. 372 of Cr.P.C. Hence, the facts being entirely different, the said principles cannot be made applicable to the facts on circumstances of the case in hand. In the decision of Apex Court in Mallikarjun Case, referred supra the Apex Court has discussed the rights of the victim and the victimology, but it is again pertaining to the offence under the provisions of I.P.C and rights of the victim was considered but not in respect of case instituted in complaint. 12. On the contrary the Hon'ble Apex Court in the decision of Subhash Chand Vs State (Delhi Admistration) reported in (2013) 2 SCC 17 has dealt with regard to the issue of initiation of case on a complaint and the remedy in case of acquittal and observed as under: A.Criminal Procedure Code, 1973-Ss.378 (4) and 2(d) & (r) and Ss.200 to 204- Complainant-Who may be-Determination ofAppeal against acquittal in complaint caseProper mode and forum for-Held, complainant might be a private person or public servant or State/State authority-In view of provisions of Ss. 2(d) and 2(r) CrPC, whether a case is a case instituted on a complaint depends on legal provisions relating to offence involved therein-But once it is a case instituted on a complaint and an order of acquittal is passed, whether offence be bailable or non-bailable, cognizable or non-cognizble, complainant can only file application under S.378(4) CrPC for special leave to appeal against it in High Court-S.378(4) places no restriction on complainant-But complainant cannot file such appeal in Sessions Court" 13. In view of the said fact, it is evident that if a case is instituted on a complaint and an order of acquittal, if any is passed, it can be only challenged under Sec. 378(4) of Cr.P.C. Sec. 378 (4) of Cr.P.C is special remedy made available to the victims pertaining to a complaint lodged before Court or a case instituted on a complaint but not on a police report. 14. In the instant case, admittedly, the jurisdiction of the investigating officer is barred and the prosecution is required to the done under Sec. 200 of Cr.P.C and it is based on a case instituted on a private complaint. In view of the same, when an offence under Sec. 138 of NI Act is involved in the instant case and when the case is based on a complaint, then the provisions of Sec. 378(4) of Cr.P.C are attracted where under Sec. 378 of Cr.P.C, the Sessions Judge does not have any power to receive any appeal. Under such circumstances the entire judgment of conviction and order of sentence passed by the learned Sessions Judge is without jurisdiction and it calls for interference. However, at the same time, the complainant is required to get an opportunity to proceed in accordance with law before the competent Court of law. 15. In that view of the matter the revision petition is to be allowed and accordingly, I proceed to pass the following ORDER i) The revision petition is allowed. The impugned judgment of conviction and order of sentence dtd.: 14/8/2019 passed by the LXIV Additional City Civil and Sessions Judge(CCH-64), Bangalore in Criminal Appeal No.1798/2017 is set aside. 15. In that view of the matter the revision petition is to be allowed and accordingly, I proceed to pass the following ORDER i) The revision petition is allowed. The impugned judgment of conviction and order of sentence dtd.: 14/8/2019 passed by the LXIV Additional City Civil and Sessions Judge(CCH-64), Bangalore in Criminal Appeal No.1798/2017 is set aside. ii) The matter is remitted back to the learned Sessions judge with specific directions that the appeal shall be restored in its original number and then he is required to pass an appropriate order under Sec. 378(4) of Cr.P.C for returning the appeal to complainant to presenting the appeal before the appropriate Court of law. Send back the records with copy of this order to the learned Sessions Judge for needful.