Calcutta High Court (Appellete Side)
M/S. Kabra Brothers & Anr vs Piyush Binakiya on 6 January, 2023
06.01.2023 Sl.No. 2 Ct. 30 Amalranjan IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE CRR 287 of 2019 M/s. Kabra Brothers & Anr.
Vs. Piyush Binakiya Mr. Ayan Bhattacharjee Mr. Somdev ash Mr. Suman Majumder...............for the petitioners This revisional application is against an order of the learned Chief Judge, City Sessions Court, Calcutta, setting aside an order of the learned Magistrate dismissing the proceedings under Section 138 of the Negotiable Instruments Act for non-prosecution.
Being aggrieved, the accused petitioners have preferred this revision praying for setting aside of the judgment and order dated 17th December, 2018 of the learned Chief Judge, City Sessions Court, Calcutta in Criminal Appeal No. 90 of 2018.
Learned counsel for the petitioners has relied upon a judgment of this court passed in CRR 3048 of 2016 - Mrinal Kanti Sil Vs. Smt. Sampa Kabiraj, wherein the court referred the matter to be placed before a larger Bench to decide the following questions:
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a. Whether a victim in a complaint case can avail of the right to appeal under proviso to Section 372 Cr.P.C.?
b. If so, what is the form and manner of availing of such remedy?
Section 2(wa) lays down:-
"2. Definitions.--In this Code, unless the context otherwise requires,--
...............2 [(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;].............."
In the present case, the petitioners herein are the accuseds in the proceedings under Section 138 of the Negotiable Instruments Act. The status of the petitioners herein is not that of a victim just because he has suffered a judgment against him.
The provisions of Section 372 of the Cr.P.C is available to a victim and an appeal under Section 378 of the Cr.P.C is preferred by a complainant or the State against an order of acquittal of the accused.
Learned counsel for the petitioners submits that an appeal was preferred against an order of acquittal before the learned Sessions Judge under Section 372 of the Cr.P.C. 3
It is the case of the petitioners that the learned Sessions Judge did not have the jurisdiction to decide an appeal under the said provision of law.
Accordingly, the issue is not similar to the reference preferred by this court in CRR 3048 of 2016, as the complainant and the accuseds in this proceedings are neither of them victims. Thus the prayer for referring the matter is rejected.
The revision to run in the list for hearing. Liberty is granted to all parties to act in terms of a copy of the order downloaded from the official website of this court.
( Shampa Dutt (Paul), J. )