Delhi District Court
Mohd. Faruq vs The State on 26 October, 2015
IN THE COURT OF SH AJAY GUPTA: ADDITIONAL SESSION
JUDGE4 (SHAHDARA), KARKARDOOMA COURTS , DELHI
Cr. Appeal No. : 35/15
UID NO : 02404R0328142015
In the matter of
Mohd. Faruq
S/o Sh. Shaukat Ali
R/o, A79, Street No. 3
Shaheed Nagar, Ghaziabad
201006 . . . . . Appellant
versus
1. The State
Govt of NCT of Delhi
2. Mohd. Ziya
s/o Sh. Mehfooj Ali
R/o D496, Shaheed Nagar,
Ghaziabad, U.P. 201006 . . . . . Respondents
Final arguments heard :26.10.2015 Date of order :26.10.2015 Decision :Dismissed J U D G M E N T
1. The present appeal has been filed against the order dated Crl. Appeal No. 35/15 Mohd. Faruq vs. The State and Anr. 1/7 10.07.2015 passed by Ms. Niyay Bindu Ld. MM (Mahila Court) Shahdara, Karkardooma Courts Delhi, in a complaint case bearing CC. No. N 525/12, titled as Md. Faruq vs. Mohd. Ziya u/s 138 Negotiable Instrument Act (hereinafter to be referred as NI Act). Vide impugned order Ld. M.M has dismissed the complaint of the appellant for non prosecution.
2. The brief facts of present case are that the appellant /complainant had filed a complaint u/s 138 of N.I. Act against the respondent no. 2/accused(hereinafter both parties have been referred as per their nomenclature in the complaint) u/s 138 of N.I Act. The accused was summoned in the said case and the matter was pending at the stage of complainant evidence and Ld. trial court dismissed the complaint of the appellant as no one appeared on behalf of complainant on 10.07.2015.
3. Initially, the appellant assailed the impugned order by filing a the revision petition, however, appellant withdrew the petition on the technical grounds and after that the appellant has assailed the impugned order by way of the present appeal.
Crl. Appeal No. 35/15 Mohd. Faruq vs. The State and Anr. 2/7
4. After putting in appearance in this matter, Ld. counsel for respondent no.2 /accused submitted that the present appeal is not maintainable as the complainant of complaint u/s 138 N.I Act is not covered within the definition of victim as mentioned u/s 372 Cr.P.C. Thus, before proceeding further, the arguments on the point of maintainability of the present appeal have been heard on behalf of appellant/complainant and respondent no. 2/accused.
5. The present appeal has been filed against the order of dismissal of the complaint of the appellant for non prosecution. Though the complainant has filed the present appeal accepting that the effect of the impugned order amounts to the acquittal of the accused, however, during the course of the arguments, Ld. counsel referred to section 258 Cr.P.C and submitted that since the complaint has been dismissed before the completion of the evidence,thus, the effect of the impugned order is that the accused has been discharged. Thus, he submitted that revision petition is maintainable and the present appeal may be treated as a revision petition.
6. This court does not find merit in the aforesaid submission Crl. Appeal No. 35/15 Mohd. Faruq vs. The State and Anr. 3/7 of Ld. counsel for appellant as it is well settled law that the effect of the order passed u/s 256 Cr.P.C i.e. for non appearance of complainant entails the acquittal of the accused. Thus, a revision petition is not maintainable where the complaint has been dismissed for non prosecution. In this regard, this court is supported by the case law reported as (1997) 2 Crimes 591 (H&P) titled as H.P Agro Industries Corpn. Ltd. Vs. M.P.S Chawla.
7. Thus, under these circumstances, only an appeal is maintainable. Since the order has been passed in a private complaint case, therefore, the appeal can only be filed u/s 378 (4) of Cr.P.C. The provisions of section 378 (4) Cr.P.C reads as under:
378. Appeal in case of acquittal (1) .................
(2) .................
(3) .................
(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.
8. Thus, the appeal in the case where the accused has been Crl. Appeal No. 35/15 Mohd. Faruq vs. The State and Anr. 4/7 acquitted in a private complaint case is to be filed u/s 378 (4) of Cr.P.C. During the course of the argument Ld. counsel for appellant submitted that after the amendment in section 372 a victim also has a right to file an appeal against the order of acquittal and to contend that the complainant of the complaint u/s 138 of N.I Act is covered within the definition of victim, Ld. counsel has cited the judgment of Hon'ble Rajasthan High Court passed in (i) S.B. Criminal Leave to appeal No. 193/2011 titled as Laxmila Menariya vs. Rajender Kumar (ii) S.B. Crl. Leave to Appeal No. 230/2011 titled as Ramavtar Gupta vs. Ravinder Kumar (iii) S.B. Crl. Leave to appeal No. 6/2012 titled as Ashok Kumar vs. State of Raj. & Anr.
9. In rebuttal, Ld. counsel for accused/respondent no. 2 submitted that complainant of complaint u/s 138 of N.I Act is not covered within the definition of victim and submitted that the appeal in case of acquittal of the complaint case u/s 138 of N.I Act is to be filed u/s 378 (4) Cr.P.C before Hon'ble High Court and in support of his contention he has cited the following case laws:
a. Subhash Chand vs. State 2013 Law Suit (SC) 15 Crl. Appeal No. 35/15 Mohd. Faruq vs. The State and Anr. 5/7 b. The Bhanjanpura Cooperative Urban vs. Sushil Kumar Crl. A. 972/2012 c. Shantaram s/o Laxman Tande and Ors etc etc v/s Dipak S/o Madhav Gaikwad and Ors etc etc. 2011 Law Suit (Bom) 605.
d. Nathu Ram Bansal v/s State of Rajasthan and Anr. 2013 Law Suit (Raj) 1790.
10. In the case of 'The Bhajanpura Cooperative Urban vs. Sushil Kumar' it has been held by Hon'ble Delhi High Court that the complainant in the proceedings of section 138 of N.I Act can not be called a victim. It has also been held by Hon'ble High Court that appeal against the acquittal order passed in a complaint case is not maintainable before Sessions Court. The relevant paras of the said judgment are reproduced herein:
13. In my considered view, the complainant in the proceedings under section 138 N.I Act can not be considered 'victim' in the letter and spirit of the definition of Section 2 (wa) of the Code and definition of 'injury' under section 44 IPC can not be imported into section 138 N.I Act. In every such proceedings at first instance, every complainant considers /claims himself/ herself a 'victim'. The complainants in these proceedings can not taken at par with those who put criminal law into motion to bring the offenders to book at whose hands, they have sustained 'injury' as defined in Section 44 IPC. The changes in Cr.P.C were for 'victim' who were the worst sufferers in Crl. Appeal No. 35/15 Mohd. Faruq vs. The State and Anr. 6/7 a crime and did not have much role in the Court proceedings. To avoid distortion of the Criminal Judicial System, they were given certain rights. (14) The Controversy now is no longer res integra in view of the pronouncement of law by Supreme Court in 'Subhash Chand vs. State (Delhi Administration)', (2013) 2 SCC 17. It was a complaint case under section 7 of Prevention of Food Adulteration Act, in which Subhash Chand was tried and he was acquitted by the learned Metropolitan Magistrate. The State filed criminal appeal before the Sessions Court under section 378 (1) (a) Cr.P.C Preliminary objection regarding maintainability of the appeal before the Sessions Court was rejected. That order was challenged before this Court (Delhi High Court) and it was held that Sessions Court had no jurisdiction to entertain the appeal.
11. Thus, in view of the order passed by Hon'ble Delhi High court the complainant u/s 138 of N.I Act can not be called a victim and thus, appeal before Sessions Court is not maintainable. Hence, the present appeal is liable to be dismissed being not maintainable and accordingly, the same is dismissed.
12.TCR be sent alongwith copy of this order. File be consigned to RR.
(Ajay Gupta) ASJ-04/Shahdara/KKD Courts/Delhi.
(Announced in Open court on 26.10.2015) Crl. Appeal No. 35/15 Mohd. Faruq vs. The State and Anr. 7/7