Delhi District Court
M/S Kores India Limited vs State & Another on 5 March, 2014
IN THE COURT OF MS. HEMANI MALHOTRA, ADDL.SESSIONS JUDGE05
(CENTRAL), TIS HAZARI, DELHI
CR No. 48/2014
M/s Kores India Limited Vs State & Another
Unique ID No.0240IR0528002011
M/s Kores India Ltd.
(Through its AR Sh. Sumit Gupta)
Regd. Office
Kores House, Plot No. 10,
Opp. Dr. E. Moses Road,
Worly, Mumbai400018
Delhi Office:
3/910, Asaf Ali Road,
New Delhi
.........Revisionist
VERSUS
(1)STATE ( Govt. of NCT OF DELHI)
(2)Sh. Surender Kumar Grover,
Proprietor
M/s Madras Optical Fibre
6054, Second Floor,
Main Sadar Bazar,
Delhi 06
.......Respondents
Date of institution : 17.11.2011
Date of reserve for order : 04.03.2014
Date of order : 05.03.2014
ORDER:
Present revision has been preferred against the impugned order dated 17.10.2011 passed by Sh. Rakesh Kumar Singh, learned MM in complaint case no.
M/s Kores India Limited Vs State and Another 1 of 5 1043/10 under Section 138 of Negotiable Instruments Act whereby the learned MM has dismissed the complaint of the revisionist and has acquitted respondent no.2. 2 On receipt of the revision petition, notice of the same was issued to the respondent no.2/accused in complaint case No.1043/2010. Before the revision could be admitted, the controversy arose regarding the maintainability of the present revision petition.
3 The learned counsel for the respondent No.2 has vehemently argued that against the impugned order dated 17.10.2011, only appeal could have been preferred by the revisionist and that too before the Hon'ble High Court of Delhi as vide order dated 17.10.2011, the learned Trial Court has acquitted the respondent No. 2 in a complaint u/s 138 of Negotiable Instruments Act after the conclusion of the trial. In this regard, learned counsel for respondent no. 2 has relied upon Section 378 Clause 4 of Cr.P.C which enunciates that if 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 Per contra, it has been pleaded by the learned counsel for the revisionist that the Sessions Court under Section 399 Cr.P.C is empowered to treat any revision as appeal by virtue of exercising powers granted to the High Court u/s 401 Cr.P.C. It was further urged that by way of the Proviso which has been recently inserted w.e.f 31.12.2009 the victim has a right to prefer an appeal against any order passed by the Court acquitting the accused and such appeal shall lie to the Court M/s Kores India Limited Vs State and Another 2 of 5 to which an appeal ordinarily lies against the order of conviction of such court. He therefore, urged that by virtue of the Proviso appended to Section 372 Cr.P.C, the appeal before this court would be maintainable. This court can suo moto treat the present revision petition as an appeal and adjudicate the same. 5 During the course of the arguments, learned counsel for the revisionist also contended that the complainant under the provisions of Section 138 of Negotiable Instruments Act can be deemed as "victim" and therefore, the complainant would have a right to file the appeal as per the Proviso to Section 372 Cr.P.C to this Court of Sessions.
6 The said argument for learned counsel for revisionist is manifestly illegal and hence, not sustainable. The Proviso to Section 372 Cr.P.C was added in the Cr.P.C by the Act V of 2009 w.e.f 31.12.2009. Whether the complainant can come within the definition of victim has been a point of consideration in many cases since the Proviso to Section 372 Cr.P.C came into force. In M/s Tata Steel Versus M/s Atma Tube Products Limited and Others decided on 18.03.2013 by the High Court of Punjab and Haryana in Crl Misc.790 Misc. application 2010, the recent judgment of the Hon'ble Surpeme Court titled as Subhash Chand Versus State (Delhi Administration) reported as I (2013) SLT 218 was discussed wherein it was held :
"A part of this uncertainty, however, has been set at rest by the Hon'ble Supreme Court in a recent decision in Subhash Chand Versus State (Delhi Administration) reported as I (2013) SLT 218 where on an interpretation of Section 378 of the Code, with special reference to its sub section (1) (a) and (b), it has been held that there is no distinction in a complaint case whether such complaint is filed by "a private person"
M/s Kores India Limited Vs State and Another 3 of 5 or a "public servant" and an appeal against the acquittal in every single complaint case shall lie u/s 378(4)Cr.P.C after seeking "special leave " of the High Court and even if the acquittal order is passed by a Magistrate in a complaint filed by a public servant or a state Government , no appeal shall lie to the Court of Sessions u/s 378 (1)(a) of the Code. The question of status of such complainant as a "victim"
or his consequential right to prefer an appeal under Proviso to Section 372 of the Code, however, was not the subject matter of the consideration in that case."
The expression complainant is not defined in the code though its section 2 (d) defines complaint to mean "any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Court, that some person, whether known or unknown has committed an offence but does not include a police report". A person, other than the informant in a police case who makes the allegation orally or in writing to the Magistrate is a complainant within the meaning of 378 (4) of the Code. The words victim and complainant have been thus used and construed in the court differently and distinctly . Also a victim can be the complainant it but may not be necessarily that every complainant is a victim.
In I (2013) SLT 218 it was observed that Section 378 (4) of the Code enables a complainant to prefer appeal against acquittal of the accused provided that the High Court grants special leave to such appeal. The legislature has imposed stringent condition on the maintainability of appeal against order of acquittal in a complaint case , for the acquittal by the trial court reinforces presumption in favour of the accused who has earned acquittal in a case where the complainant himself/herself was the prosecutor unlike the "Victim" in a police case who does not have any say in the trial. Such being the legislative intentment, there cannot be any scope to doubt that the "complainant" of Section 378 (4) who has failed to establish the complicity can assail such acquittal only with the "special leave" of the High Court under Section 378 (4) only. The fact that the legislature has brought no changes in the sub section fortifies its policy to retain the same legal position as it existed before the Amendment Act, 2008".
7 The aforesaid judgment has very aptly dealt with the difference between the complainant in Section 378 (4) Cr.P.C and the Victim in Proviso to Section 372 M/s Kores India Limited Vs State and Another 4 of 5 Cr.P.C. In view of the observations made by the Hon'ble Supreme Court in Subhash Chand Vs State (Administration), the victim in Proviso to Section 372 Cr.P.C does not include a complainant whether "private" or a "public servant". Meaning thereby, the definition of victim can not be extended to the complainant under Section 138 of Negotiable Instruments Act.
8 The learned counsel for the respondent no.2 in support of his contention that the revision is not maintainable and only an appeal shall lie to the High Court has also placed reliance other than on Subhash Chand Vs Delhi State (Delhi Administration) on Ravi Sharma Versus State (NCT of Delhi) & Another reported as 2009 (113) DRJ 494 and M/s T.Azeerur Rahman & Co. Versus M/s Super Suppliers passed in Crl.Rev.P 440/2000. Both the judgments on which reliance have been placed are also on similar lines and have in effect reiterated the observations made in the judgment of the Apex Court.
9 In view of the aforesaid discussion, there is no doubt in my mind that the revisionist could only have preferred an appeal against the acquittal of respondent no.2 and that the present revision petition cannot be entertained. Same is therefore dismissed. Revision file be consigned to Record Room.
Dictated and announced today (Hemani Malhotra)
i.e. on 05.03.2014 ASJ05 (Central)/THC/Delhi
05.03.2014
M/s Kores India Limited Vs State and Another 5 of 5