Karnataka High Court
D Ganeshmurthy vs The State Of Karnataka on 13 September, 2012
:1:
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE K.N.KESHAVANARAYANA
CRIMINAL APPEAL No.09/2012 (A)
BETWEEN:
D.Ganeshmurthy,
S/o. Late Doddannaiah,
Aged about 70 years,
No.5, 32nd Cross,
9th Main, 4th Block,
Jayanagar,
Bangalore - 560 011. ...Appellant
[By Shri M.T.Nanaiah and
Shri Shankarappa Associates, Advocates]
AND:
1. The State of Karnataka,
By Siddapura Police,
Bangalore City,
Bangalore.
2. K.N.Lakshminarasimha,
S/o. Late K.B.Nanjundaiah,
Aged about 72 years,
R/o. No.5, Govindappa Road,
Basavanagudi,
Bangalore. ...Respondents
[By Shri Bhavani Singh, S.P.P.]
This Criminal Appeal is filed under Section 372 of
the Code of Criminal Procedure praying to set aside the
judgment and order passed by the I Additional Chief
:2:
Metropolitan Magistrate, Bangalore in Criminal Case
No.7630/2003 Dated 22.07.2011 - Acquitting the
respondent No.2 - accused for the offences punishable
under Sections 408, 468, 471 and 420 of the Indian
Penal Code.
This Criminal Appeal coming for orders on this
day, the Court delivered the following: -
JUDGMENT
Heard Shri Shankrappa, learned counsel for the appellant regarding maintainability of the appeal. This appeal is filed under Section 372 of the Code of Criminal Procedure against the judgment and order dated 22.07.2011 passed by the I Additional Chief Metropolitan Magistrate, Bangalore, in Criminal Case No.7630/2003 acquitting the respondent - accused of the charges levelled against him for the offences punishable under Sections 408 and 420 of the Indian Penal Code (for short I.P.C.).
2. The appellant as chairman of Bharatiya Vidya Vahini Trust, filed a report before the jurisdictional police alleging offences punishable under Sections 408, 468, 471 and 420 of I.P.C., against the respondent, interalia contending that the respondent - :3: accused while working as a Principal of P.T.A. School situated in Jayanagar I Block, Bangalore, run by Bharatiya Vidya Vahini Trust between 07.12.1987 to 19.08.2002 misappropriated funds of the school to the extent of Rs.5,900/- by issuing fabricated and forged receipts to the parents of the students and has committed the acts of cheating and criminal breach of trust etc. The jurisdictional police after investigation filed charge sheet against the respondent for the offences punishable under Sections 408 and 420 of I.P.C. After the full fledged trial, the learned Magistrate by the judgment under appeal, acquitted the respondent
- accused on the ground that the prosecution has failed to prove the guilt of the accused for the charges levelled. Aggrieved by the said judgment of acquittal, the appellant who is the complainant - informant before the Police has filed this appeal under Section 372 of the Code of Criminal Procedure.
3. Until the proviso to Section 372 of the Code of Criminal Procedure was introduced by Act No.5 of :4: 2009 with effect from 31.12.2009, there was no right of appeal to the complainant before the Police or the victim as the case may be against the judgment of acquittal. The only remedy under such circumstance for the complainant or the victim was to file a Revision Petition under Section 397 of the Code of Criminal Procedure. However, by way of amendment brought into effect from 31.12.2009, proviso to Section 372 of the Code of Criminal Procedure was introduced which conferred on the victim right to prefer an appeal against acquittal of the accused or convicting the accused for a lesser offence or imposing inadequate compensation. The said proviso further states that such an appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. In the case on hand, if the Trial Court had recorded a conviction for those offences, against such judgment, appeal would lie to the Court of Sessions. No doubt, proviso to Section 372 of the Code of Criminal Procedure confers a right of appeal on the victim. The expression, "the complainant before the Police or informant" has not been used in the said :5: proviso. However, having regard to the facts of this case, the informant namely, the appellant could be termed as a victim for the reason that by the alleged act of the respondent in misappropriating the funds of the school, the appellant who is stated to be the Chairman of the said Trust could be termed as victim within the meaning of proviso to Section 372 of the Code of Criminal Procedure. Therefore, this appeal filed under Section 372 of the Code of Criminal Procedure would not lie before this Court and the same will have to be filed before the Court of Sessions. In this view of the matter, the appeal papers are ordered to be returned to the counsel for the appellant for presentation before the proper Court.
4. For statistical purpose, this appeal is disposed of.
SD/-
JUDGE Rsh