Karnataka High Court
Maruti vs Laxman Yallappa Godi, on 10 December, 2018
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH R
DATED THIS THE 10TH DAY OF DECEMBER 2018
BEFORE
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
CRL.R.P.NO.100243 OF 2016
BETWEEN:
MARUTI S/O.IRAPPA VANI,
AGE : 45 YEARS, OCC: AGRICULTURE
AND BUSINESS, R/O.MENDEGALI,
TQ :KHANAPUR, NOW RESIDING
AT PUNE.
............PETITIONER
(BY SRI.M.B.GUNDAWADE, ADVOCATE)
AND :
1. LAXMAN YALLAPPA GODI,
AGE : 45 YEARS, OCC : AGRICULTURE,
R/O.CHAPAGAON, TQ :KHANAPUR.
2. SATISH KRISHNARAO DESAI,
AGE : 46 YEARS, OCC : BUSINESS,
R/O.CHAPAGAON, TQ: KHANAPUR.
3. SHANTARAM MALLAPPA BADASKAR,
AGE : 40 YEARS, OCC : AGRICULTURE,
R/O.HEBBAL, TQ: KHANAPUR.
4. SHIVAJI KALURAM PAWAR,
AGE : 53 YEARS, OCC :BUSINESS,
R/O.ARJAGI, HAVALLI, PUNE.
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5. KRISHNA YALLAPPA GODI,
AGE : 50 YEARS, OCC : AGRICULTURE,
R/O.CHAPAGAON, TQ :KHANAPUR.
6. ASHOK MASANU BELGAONKAR,
AGE : 41 YEARS, OCC :AGRICULTURE,
R/O.CHAPAGAON, TQ : KHANAPUR.
7. STATE OF KARNATAKA,
BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
DHARWAD BENCH, AT DHARWAD
THROUGH KHANAPUR POLICE STATION.
.....RESPONDENTS
(BY SRI.SHREEVATSA S.HEGDE,
ADVOCATE FOR R-1 TO R-6)
(BY SRI.ANTHONY R.RODRIGUES, AGA FOR R-7)
THIS CRIMINAL REVISION PETITION IS FILED
UNDER SECTION 397 READ WITH SECTION 401 OF CR.P.C
SEEKING TO CALL FOR THE RECORDS FROM TRIAL COURT
PERTAINING TO CASE BEARING C.C.NO.712 OF 2007
FROM THE FILE OF CIVIL JUDGE AND JMFC, KHANAPUR,
TO ASCERTAIN LEGALITY, PROPRIETY AND CORRECTNESS
OF THE IMPUGNED JUDGMENT, FINDINGS AND ORDER OF
ACQUITTAL DATED 23.04.2012 AND TO ALLOW THE
PETITION AND THEREBY SETTING ASIDE THE JUDGMENT
OF ACQUITTAL PASSED BY CIVIL JUDGE AND JMFC,
KHANAPUR IN C.C.NO.712 OF 2007 DATED 23.04.2012
AND TO PASS A JUDGMENT OF CONVICTION AND ORDER
OF SENTENCE CONVICTING THE RESPONDENT/ACCUSED
FOR THE OFFENCES UNDER SECTIONS 420, 423, 468, 471
READ WITH SECTION 34 OF IPC IN ACCORDANCE WITH
LAW.
THIS REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE
FOLLOWING :
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ORDER
The petitioner who claims to be a victim, has preferred this revision petition questioning the correctness and legality of the impugned Judgment and Order of acquittal dated 23.04.2012 passed in C.C.No.712 of 2007 on the file of Civil Judge and JMFC Court, Khanapur, whereby the trial Court acquitted the accused/respondents of the offences punishable under Sections 420, 423, 468 and 471 read with Section 34 of IPC.
2. It is relevant to mention that challenging the aforesaid Judgment and order passed by the trial Court, the petitioner preferred Criminal Appeal No.140 of 2012 and the learned Sessions Judge by an order dated 24.08.2016 returned the appeal to the appellant with liberty to present it before this Court. The learned Sessions Judge after observing that the date of alleged incident was on 27.11.2003 and amendment for Cr.P.C. to Section 372 came into effect from 31.12.2009 and relying on a decision of the Hon'ble Apex Court reported in (2010) 12 SCC 4 Page No.599 in the case of National Commission for Women v/s State of Delhi and another held that the Sessions Court has no jurisdiction to decide the matter, since, the incident took place long before the aforesaid amendment and ordered that appeal be returned to the appellant, granting liberty to present the same before this Court.
3. I have heard the learned counsel Sri.M.B.Gundawade appearing for petitioner and Sri.Shreevatsa S.Hegde, appearing for respondent Nos.1 to 6 and Sri.Anthony S.Rodrigues, AGA for respondent No.7.
4. The short question that arise for consideration in this petition is as to whether an appeal preferred by a victim in a case where the accused are acquitted of the offences charged against them in a trial conducted by learned Magistrate, would lie before the Sessions Court 5 under Section 372 of Cr.P.C or as to whether it lies before this Court under Section 378(3) of Cr.P.C., when the incident has taken place prior to the amendment brought to Section 372 of Cr.P.C i.e., with effect from 31.12.2009 and the impugned judgment is passed after the amendment.
5. The Hon'ble Apex Court in the case of National Commission for Women v/s State of Delhi and Another (supra) at paragraph No.8 of the said Judgment held as under :
"8. Chapter XXI X of the Code of Criminal Procedure deals with "Appeal(s)".
Section 372 specifically provides that no appeal shall lie from a judgment or order of a criminal court except as provided by the Code or by any other law which authorises an appeal. The proviso inserted by Section 372 (Act 5 of 2009) wi th effect from 31-12-2009, gives a limited right to the victim to file an appeal in the High Court against any order of a criminal court 6 acquitting the accused or convicting him for a lesser offence or the imposition of inadequate compensation. The proviso may not thus be applicable as it came in the year 2009 (long after the present incident) and, in any case, would confer a right only on a victim and also does not envisage an appeal against an inadequate sentence. An appeal would thus be maintainable only under Section 377 of the High Court as it is effectively challenging the quantum of sentence."
6. In the instant case the alleged incident is said to have occurred on 27.11.2003 and the impugned Judgment and Order of acquittal was passed by the trial Court on 23.04.2012. The learned Sessions Judge placing reliance on the afore stated decision of the Hon'ble Apex Court and after observing that the law laid down is applicable to the present facts of the case, since in the present case also incident took place long prior to the amendment to Section 372 of Cr.P.C., ordered to return the appeal to present it before this Court.
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7. It is the contention of the learned counsel for petitioner that since the appeal was returned to present it before this Court and since there was no right available to the victim under Section 372 of Cr.P.C to file an appeal before this Court, he preferred this revision petition. However, he contends that in view of the latest law laid down by the Hon'ble Apex Court in the case of Mallikarjun Kodagali (Dead) through Lrs. v. State of Karnataka and others reported in AIR 2018 SC 5206, the appeal is maintainable before the Sessions Court under Section 372 of Cr.P.C. Accordingly, he seeks to allow the petition.
8. The learned counsel appearing for respondents contended that this is a case instituted on a complaint, and therefore, the remedy available to aggrieved complainant would be before this Hon'ble Court under Section 378(4) of Cr.P.C. after seeking special leave to file such appeal. He further contended that the learned Sessions Judge has passed the order in view of the submission made by the 8 petitioner himself that the appeal was not maintainable before the said Court and hence he submits that the contentions raised by the petitioner cannot be accepted. Accordingly, he seeks to dismiss the Revision Petition.
9. Admittedly in the present case the alleged incident is said to have taken place on 27.11.2003. The petitioner herein who was examined as P.W.8 before the trial Court challenged the impugned judgment and order of acquittal dated 23.04.2012 passed by the Court of Civil Judge & J.M.F.C., Khanapur in C.C. No.712/2007 before the Court of Prl. District & Sessions Judge, Belgaum by filing an appeal under Section 372 of Cr.P.C.
10. The learned Sessions Judge by placing reliance on the decision reported in National Commission for Women v. State of Delhi and Another (supra) and after observing that Section 372 and 377 of Cr.P.C. have no retrospective effect as Section 372 of Cr.P.C. was amended by Act No.5 of 2009 with effect from 31.12.2009 and proviso was inapplicable if the incident has taken long prior 9 to the said amendment, passed an order returning the appeal reserving liberty to present it before this Court.
11. Section 372 of Cr.P.C. and the proviso as amended by Act No.5 of 2009 which has come into effect from 31.12.2009 reads as under :
"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 ordinarily lies against the order of conviction of such Court.]"
12. The Hon'ble Apex Court in the case of Mallikarjun Kodagali (Dead) through Lrs. v. State of Karnataka and others (supra) has held at paras 74 and 83 as under:
"74. What is significant is that several High Courts have taken a consistent view to the effect that the 10 victim of an offence has a right of appeal under the proviso to Section 372 of the Cr.P.C. This view is in consonance with the plain language of the proviso. But what is more important is that several High Courts have also taken the view that the date of the alleged offence has no relevance to the right of appeal. It has been held, and we have referred to those decisions above, that the significant date is the date of the order of acquittal passed by the Trial Court. In a sense, the cause of action arises in favour of the victim of an offence only when an order of acquittal is passed and if that happens after 31st December, 2009 the victim has a right to challenge the acquittal, through an appeal. Indeed, the right not only extends to challenging the order of acquittal but also challenging the conviction of the accused for a lesser offence or imposing inadequate compensation. The language of the proviso is quite explicit, and we should not read nuances that do not exist in the proviso.
xxxxx
83. As far as the present case is concerned, the offence took place on 06.02.2009 i.e., prior to 31.12.2009 and the order of acquittal was passed by the trial court on 28.10.2013. I am in agreement with my learned brother that the right to file an appeal to the victim will arise only on the date when the judgment is passed by the trial court because then 11 alone the victim has a right to urge that the acquittal is wrong or that the sentence awarded to the accused is not commensurate with the offence which the accused may have committed. Therefore, I have no doubt that the victim has a right to appeal and to that extent the judgment of the High Court is liable to be set aside."
13. In view of the latest pronouncement by the Hon'ble Apex Court in the above case, the issue is well settled that the cause of action arises in favour of the victim of an offence to challenge the acquittal when an order of acquittal is passed. The right to file an appeal to the victim will arise only on the date when judgment is passed by the trial Court.
14. In the instant case the impugned judgment and order of acquittal is dated 23.04.2012 which is after the amendment brought to Section 372 Cr.P.C. and that being the case, the criminal appeal filed by a victim against such an order of acquittal passed by the trial Court shall lie before the Sessions Court.
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15. It is also the contention of learned counsel for the respondents that the present case arise out of a case instituted on a complaint, and therefore, any judgment of acquittal passed by the learned Magistrate has to be challenged before this Court by way of an appeal under Section 378(4) of Cr.P.C..
16. It is relevant to refer to the definition of 'complaint' as provided under Section 2(d) of Cr.P.C. which reads as under :
"2(d) "complaint" means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report."
17. In the instant case though initially a private complaint was filed in P.C. No.62/2005 before the learned Magistrate, however it is not disputed that the said complaint was referred to police for investigation under Section 156(3) of Cr.P.C. and subsequently a final report was filed disclosing commission of cognizable offences. 13 Subsequently trial was held and the accused came to be acquitted. In such an event it cannot be said that the impugned judgment and order of acquittal arises out of a case instituted upon complaint. Therefore, the contention of the learned counsel for the respondents cannot be accepted.
18. It is the further contention of the learned counsel for the respondent Nos.1 to 6 that the present petitioner cannot be said to be a victim, since he is not the complainant but he is only a witness examined as PW-8. However, it is the submission of the learned counsel for the petitioner that the accused had entered into an agreement of sale with the original complainant in respect of the land measuring 7 acres 33 guntas in R.S.No.50/2A of Rumewadi village, Tq: Khanapur and subsequently they failed to make balance payment and accordingly the said land was sold to the petitioner herein. However, the accused by fabricating the documents, filed a suit before the Civil Court and a private complaint was filed against 14 them alleging offences punishable under Section 423, 468, 471 and 420 read with Section 34 of the Indian Penal Code. The petitioner being the purchaser and true owner of the land in question is an aggrieved person as defined under Section 2(wa) of Cr.P.C., since he has suffered loss caused by the act committed by the accused.
19. Section 2(wa) of the Code of Criminal Procedure, 1973, defines the victim as under:
"2. Definition - In this Code, unless the context otherwise requires,-
(a) to (w) xxxx (wa) "victim" means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression "victim" includes his or her guardian or legal heir."
20. According to the petitioner, he has suffered loss on account of the act of forgery etc. committed by the accused persons in respect of the land in question since he is the purchaser and true owner of the land. However, the said question is left open and it is for the petitioner to 15 establish before the appellate Court that he is a "victim" as defined under Section 2(wa) of the Cr.P.C.
21. In the light of discussions made supra and with the aforesaid observations, I pass the following order:
This Revision Petition is allowed.
The order dated 24.08.2016 passed in Criminal Appeal No.140 of 2012 by the Court of Principal District and Sessions Judge, Belagavi is hereby set aside. The matter is remanded back to the learned Sessions Judge to take the Criminal Appeal No.140 of 2012 on board and to dispose off the same in accordance with law after giving sufficient opportunity for both the parties.
All other contentions of the parties are left open.
Sd/-
JUDGE Ckk, hnm, kmv & kgk