Kerala High Court
P.V.Ponnappan vs Balachandran on 11 July, 2014
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH
FRIDAY, THE 27TH DAY OF OCTOBER 2017/5TH KARTHIKA, 1939
Crl.MC.No. 7146 of 2014 ()
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AGAINST THE JUDGMENT IN CRA 166/2013 of ADDL.D.C. &
ADDL.MACT,ALAPPUZHA. DATED 11-07-2014
AGAINST THE ORDER/JUDGMENT IN CC 901/2010 of J.M.F.C.-I, CHERTHALA
DATED 18-03-2013
PETITIONER/APPELLANT/COMPLAINANT:
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P.V.PONNAPPAN,
S/O VELAYUDHAN,
POOTHAKULATH,
CMC-XIX, CHERTHALA.
BY ADVS.SRI.C.K.SAJEEV
SRI.M.V.BAIJU
RESPONDENT(S)/RESPONDENT/RESPONDENT:
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1. BALACHANDRAN, aged 52 years
S/O P.G. VASUDEVA PANICKER,
ASWATHY BHAVAN, NORTH ARYAD P.O.,
MANNENCHERY PANCHAYATH WARD NO:12,
ALAPPUZHA-688542.
2. STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM-682031.
R1 BY ADV. SRI.VISHNURAJ
R2 BY PUBLIC PROSECUTOR SRI. C.S. HRITWIK
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
27-10-2017, ALONG WITH CRMC. 7147/2014, THE COURT ON
THE SAME DAY PASSED THE FOLLOWING:
sou.
Crl.MC.No. 7146 of 2014 ()
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APPENDIX
PETITIONER(S)' EXHIBITS
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ANNEXURE 1: CERTIFIED COPY OF THE JUDGMENT DATED 18.3.2013 IN
CC NO.901/2010 OF THE JUDICIAL FIRST CLASS MAGISTRATE
COURT-I, CHERTHALA.
ANNEXURE 2: CERTIFIED COPY OF THE JUDGMENT DATED 11.7.2014 IN
CRL.APPEAL NO.166/2013 ON THE FILE OF THE ADDITIONAL
SESSIONS COURT, ALAPPUZHA.
RESPONDENT(S)' EXHIBITS
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NIL
// TRUE COPY //
P.A. TO JUDGE
sou.
'CR'
NAVANITI PRASAD SINGH, CJ
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Crl. M.C. No. 7146 of 2014
and
Crl. M.C. No. 7147 of 2014
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Dated this the 27th day of October, 2017
O R D E R
An interesting question arises in these two cases. These two cases are applications under Section 482 of Code of Criminal Procedure as against the order passed by the learned Sessions Judge dismissing the appeal of the complainant as not maintainable, which was filed under Section 372 proviso of the Code of Criminal Procedure, protesting against inadequate compensation granted. The facts are not in dispute. The second respondent in both the cases is the same. He had issued two cheques, purported to be in discharge of his debt to the complainant totaling to Rs.3,50,000/-. On deposit, the two cheques bounced and two complaints were filed under the Negotiable Instruments Act. Upon contest, the trial court of Magistrate found the accused guilty and sentenced him to imprisonment till rising of the Court and the complainant was awarded compensation of Rs.25,000/- only in each case. Keeping in mind that the total consideration covered by the cheques was Rs.3,50,000/-, on the face of it the compensation Crl.M.C.7146 & 7147 of 2014 2 granted was grossly inadequate, the complainant filed two appeal under Proviso to Section 372 of the Code of Criminal Procedure. For better understand the issue at hand, Section 372 and Section 378 (4) of Cr.P.C. are quoted hereunder :
"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.
378. Appeal in case of acquittal.- xxx xxx xxx (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."
Upon notice, the Session's Court dismissed the appeals as not maintainable, holding that the complainant should have preferred appeals in terms of Section 378 (4) of the Code of Criminal Procedure as held by the Division Bench of this High Court in the case of Omana Jose and Another v. State of Kerala and Others reported in [2014 (2) KHC 277 (DB)]. Being aggrieved by this, the present applications have been preferred. Pursuant to notice issued, the contesting respondent has appeared. Crl.M.C.7146 & 7147 of 2014 3
2. I have heard the parties including the Public Prosecutor. On the first blush, the stand taken by the Sessions Court appears to be correct, but on closer scrutiny the situation is clearly distinguishable. In the substance, what the Division Bench has held is that if the Proviso to Section 372 Cr.P.C., which gives a right to the victims, is construed literally, a victim would have two remedies under the Cr.P.C as against acquittal of the accused persons. It could prefer appeal, in terms of Section 378(4) with the leave of the High Court or it could have preferred an appeal to the Sessions Court under Proviso to Section 372, without seeking leave. The Division Bench was of the view that such legislative intent not being there, the only way to reconcile was to hold that the expression 'victim' as defined in Section 2(wa) of the Cr.P.C., would not include a complainant and consequently Section 372 proviso would not apply to complaint cases but only police case.
3. The first thing we have to keep in mind is the Division Bench was dealing with a case of acquittal, where apparently two remedies became available. One, with the leave of the High Court and the other, to the Sessions Court as a matter of right. It is in that situation, the Division Bench held that the expression 'victim' has to be given a limited scope not to include Crl.M.C.7146 & 7147 of 2014 4 'complainant' in a complaint case. It is not open for this Court to take a different view of the matter. But, however, we have to keep in mind what was said in the case of State of Orissa v. Sudhansu Sekhar Misra and others [AIR 1968 SC 647] referring to the famous statement of Earl of Halsbury LC in Quinn v. Leathem. I can do no better than to quote :
"A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury. LC said in Quinn v. Leathem, 1901 AC 495.
"Now before discussing the case of Allen v. Flood, 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all."
4. I have pointed out this decision to show that the Division Bench was considering a case of acquittal and in order to resolve the two remedies available, they took a view about interpretation of the word 'victim' as used in Section 372 Proviso. Though nothing turns on it, I may notice one aspect which was not Crl.M.C.7146 & 7147 of 2014 5 considered by the Division Bench when they did not adopt the definition of the term 'victim' as provided under Section 2(wa) of Cr.P.C. to the expression 'victim' as used in Section 372 proviso to the Code. The amendment to the definition clause 2(wa) and insertion of proviso to Section 372 were simultaneous acts. The legislature were fully aware and conscious of the change being made to the definition of 'victim' with simultaneous change of Section 372 by addition of proviso and then to hold that notwithstanding these legislative changes the expression 'victim' as used in Section 372 proviso would not take its colour from the definition Section 2(wa) of the Code may not be correct and may require reconsideration in an appropriate case. But the fact of the matter is that the Division Bench was considering a case of acquittal in a complaint case and it is for that purpose of resolving and granting the singular relief against such acquittal, the Division Bench held that the expression 'victim' as used in Section 372 proviso would have a meaning different from the word 'victim' as defined in Section 2(wa).
5. From this, in my view, it does not logically flow that for all purposes 'victim' would not mean a complainant. Section 2(wa) defines the terms 'victim' as under :
Crl.M.C.7146 & 7147 of 2014 6 "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."
If we look to the term 'victim' as quoted above, it talks of a person who has suffered any loss or injury. Surely, a person who was issued a cheque, which was disnonoured would come within this definition, may he be a complainant himself.
6. Learned counsel for the contesting respondents submits that Section 2(wa) talks of a person who has suffered loss or injury as a consequence of an act of a person who is 'charged' with committing an offence. He emphasises that the expression 'charge' here would mean charge as specially defined and treated as such under the Code, meaning thereby that it would only be a case of police report, where in a trial an accused is formally charged. I regret. I am unable to accept the submission. If we look to Section 2 of the Code of Criminal Procedure, it clearly predicates that unless the context otherwise provides the definition of 'charge' would apply as defined therein by virtue of Section 2(b) and the provisions of the Code technically defining charge would not apply to Section 2(wa) inasmuch as what is predicated by the expression 'charge' used therein is a person arranged or accused of an offence, which he has to answer. Thus Crl.M.C.7146 & 7147 of 2014 7 read, the expression 'victim' as defined does not put any limitation.
7. There is another strong reason why it is to be read so. It is by virtue of Section 372 proviso alone the remedy by way of right is provided to a victim as against inadequate compensation. Inadequate compensation is distinct from inadequate sentence for, compensation is paid to the victim and sentence is given to the accused, found guilty. It is distinct from acquittal. It is distinct from a punishment under a lesser provision. If the interpretation as given by the Division Bench is accepted, then the victim is remediless against inadequate compensation. The learned counsel for the contesting respondent then submits that he may, in such circumstances apply either under Section 378(4) of the Code to the High Court with leave which on the face of it does not apply or under Section 397 read with 401 Cr.P.C. All I can say is the remedy provided under Section 397 read with 401 of the Code of Criminal Procedure is discretionary remedy and not a remedy by way of right. Appeal is a remedy by way of right. If interpreted in the manner in which the contesting respondent seeks, it would be taking away a remedy by way of right in exchange of a remedy by way of discretion. That surely is never Crl.M.C.7146 & 7147 of 2014 8 to be intended. Thus, on reading of the Division Bench judgment in the case of Omana Jose (supra), it has to be read in the context of an acquittal in a case based upon complaint. So far as inadequacy of compensation is concerned, in a complaint case an appeal would lie in terms of Section 372 proviso of the Code. That being so, the Sessions Court erred in dismissing the appeal, more so when the trial court had convicted the contesting respondent for an offence under Section 138 of the Negotiable Instruments Act for having issued cheques totaling to Rs.3.50 Lakhs. Yet the total compensation granted was only Rs.25,000/- in each case ie., Rs.50,000/- in total. Therefore, in the facts aforesaid and in view of the law as understood by this Court, the orders of the learned Additional Sessions Judge, Alappuzha being order dated 11.7.2014 in Criminal Appeal No.166 of 2013 and order dated 21.7.2014 in Criminal Appeal No.167 of 2013 are set aside and the Appellate Court is directed to hear and re-decide the matter in accordance with law, at an early date.
Sd/-
Navaniti Prasad Singh, Chief Justice sou.30/10.