Delhi District Court
Ashok Gupta vs Gogia Cap. Com Ltd on 17 November, 2011
IN THE COURT OF MS. R. KIRAN NATH
ASJ 01, SOUTH DELHI, SAKET COURTS
CA No.04/11
Ashok Gupta
10, Central Lane,
Bengali Market,
New Delhi110001 Appellant.
Vs
1. Gogia Cap. Com Ltd.
B4/51, Safdarjung Enclave
New Delh110029.
2. Mr. Satish Gogia
Managing Director
B4/51, Safdarjung Enclave
New Delh110029. Respondent
Date of Institution : 28012011
Date of Judgment : 17112011
JUDGMENT:
1. This appeal has been filed against the impugned order dated 200111 of the Ld. MM, whereby Ld. MM had dismissed the complaint of the present appellant u/s 256 Cr.PC for want of appearance of the complainant and the CA No. 04/11 Page no. 1 accused (present respondent) were acquitted of the offence u/s 138 NI Act.
2. Trial court record has been called for and perused.
3. In brief the facts material for consideration of this appeal are that a complaint u/s 138 NI Act was filed by one Ashok Gupta. It transpires from the trial court record that during the trial, accused had made efforts to make payment of cheque amount in question subject to identification of the parties in whose favour the cheque was issued. It is seen that the complainant had not been appearing nor the AR of the complainant was appearing in the court since quite sometime. The court ordered for appearance of the complainant on several dates. The complainant, however, did not appear. Vide detailed order dated 200111 (impugned order), the Ld. MM held that the complainant had failed to appear in the court despite repeated directions. The court even doubted the existence of the complainant as he was dragging the court time without appearing in the court himself. The Ld. MM had thus dismissed the complaint u/s 256 Cr.PC for want of CA No. 04/11 Page no. 2 appearance of the complainant and the accused was acquitted of the offence u/s 138 NI Act.
4. Aggrieved by the said order the present appeal has been filed by the appellant stating that the said order of dismissal of the complaint be setaside.
5. The respondent on the other hand has contested the said appeal primarily on the ground that the same was not maintainable. Vide the impugned order dated 200111 the complaint was dismissed u/s 256 Cr.PC for want of appearance of the complainant and consequent thereto all the accused persons (present respondent) had been acquitted of the offence u/s 138 NI Act. Thus the petitioner should have filed an appeal in this case before the Hon'ble High Court in view of the provisions of section 378 (4) Cr.PC.
6. I have heard the Ld. Counsel for the parties and have also gone through the record carefully.
7. Chapter XXIX i.e. section 372 to 394 deals with the various aspects of appeals which can be filed and the court in which it can be filed against the orders of Ld. MM.
CA No. 04/11 Page no. 3
8. Section 372 Cr.PC provides that no appeal shall lie from any judgment or order from the criminal court except as provided by the Code or by any other law for time being in force. Under section 374 Cr.PC an appeal may lie to Sessions Court against the conviction passed by Metropolitan Magistrate. Section 378 Cr.PC provides for an appeal in the case of acquittal. Section 378 (4) Cr.PC provides that where the order of acquittal is passed in a case instituted upuon the complaint, the complainant may present an appeal to the Hon'ble High Court. Thus, wherever an order of acquittal is passed in a case instituted on a complaint, the appeal lies only to the Hon'ble High Court.
9. In the present case the present appellant had filed a complaint u/s 138 NI Act against the present respondents in the court of the Ld. MM. The same was dismissed u/s 256 Cr.PC for want of appearance of complainant despite the directions of the Ld. MM. Section 256 Cr.PC provides that: If the summons has been issued on complaint, and on CA No. 04/11 Page no. 4 the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day.
10. It can thus be seen that it is a mandate to the Ld. MM to acquit the accused incase the complainant does not appear.
11. In the present case the Ld. MM vide impugned order dated 200111, had acquitted the accused u/s 256 Cr.PC and thus in view of the provisions of section 378 (4) Cr.PC as discussed above, appeal against the same would lie to the Hon'ble High Court only and does not lie before the Sessions Court.
12. Counsel for the appellant has argued that proviso to section 372 Cr.PC provides that a victim shall have right to prefer an appeal against any order passed by the court acquitting the accused and such appeal shall lie to the court to which an appeal ordinarily lies against the order of CA No. 04/11 Page no. 5 conviction of such court. It is argued that against the order of conviction appeal from the Ld. MM lies to the court of Sessions ordinarily (in view of section 374 (3) Cr.PC) and thus this court would have the jurisdiction to hear this appeal.
13. I am unable to accept this contention of the Ld. Counsel for the petitioner. Perusal of proviso to section 372 shows that it is only a victim of the case who has the right to prefer an appeal against the order acquitting the accused. The legislature could not have intended that the complainant of a case be considered as victim. Giving it such an interpretation would nullify the effect of the provisions of section 378 (4) Cr.PC wherein it is categorically provided that an appeal from the order of acquittal passed in a complaint case would lie only to the Hon'ble High Court. The provisions of section 372 Cr.PC would be applicable where there is a "victim" in a case instituted on a police report. Such victim had no right to prefer an appeal against the acquittal of the accused prior to the amendment in 2009. The right to a victim who files a CA No. 04/11 Page no. 6 complaint in the court was already provided for u/s 378 (4) Cr.PC even prior to this amendment. Accepting the arguments of the counsel for the appellant would nullify and render the said provision superfluous.
14. This position of victim under the proviso to section 372 Cr.PC was further clarified in the case of Shanta Ram Vs Deepak, MANU/MH/0668/2011 decided on 060511 by Hon'ble High Court of Bombay that and it was held that the said proviso did not apply to acquittal of the offences punishable u/s 138 of Negotiable Instruments Act i.e. the provisions of section 378 (4) Cr.PC would apply to order of acquittal in a case instituted on complaint.
15. My attention is also drawn to the judgment of Hon'ble High Court of Madhya Pradesh in the case of Dharamveer Singh Tomar Vs Ramraj Singh Tomar, MANU/MP/0038/2011, wherein it was held that the only remedy available to the complainant in a complaint case is to prefer an appeal before the Hon'ble High court u/s 378 (4) Cr.PC.
16. It was also held in the case of Top Notch Infotronix (I) CA No. 04/11 Page no. 7 Pvt. Ltd. VS Infosoft Systems, MANU/MH/0759/2011 decided on 16062011, that the forum of appeal against an order of acquittal would not be Sessions Court u/s 372 Cr.PC but the Hon'ble High Court u/s 378 (4) Cr.PC.
17. Thus in my opinion in view of the aforesaid provisions of the Cr.PC and the judgments discussed above the only remedy available to the present petitioner was to prefer an appeal in terms of section 378 Cr.PC.
18. I am fortified in my opinion by the decision of Hon'ble High Court in the case of Ravi Sharma Vs State (NCT of Delhi) & Anr. 2009 (4) LRC 1 (Delhi) DEL 37, decided on 110809, wherein it was held that Once an order of dismissal of complaint on account of nonappearance of complainant is passed under section 256 of Cr.PC by Magistrate which results in statutory acquittal of accused, the only remedy available to complainant to file an appeal against acquittal under section 378 (4) of Cr.PC.
19. I thus hold that the present appeal is not maintainable in this case. In these circumstances, the appellant ought to have filed an appeal before the Hon'ble CA No. 04/11 Page no. 8 High Court against this statutory acquittal of the respondent. The appeal is thus dismissed.
20. File be consigned to record room. TCR be sent back. Announced on 17th November, 2011.
(R. Kiran Nath) ASJ01/South New Delhi.
CA No. 04/11 Page no. 9 Ashok Gupta Vs Neeraj Saxena CA No. 04/11 17112011 Present: None for the appellant.
Proxy counsel for the respondent.
Vide my separate judgment of the date, the appeal filed by the appellant is dismissed.
File be consigned to record room. TCR be sent back.
(R. Kiran Nath)
ASJ01/Saket Courts
17112011
CA No. 04/11 Page no. 10