Madras High Court
A.E.Sivaprakasam vs G.T.Sairam on 10 April, 2019
Author: R.Suresh Kumar
Bench: R. Suresh Kumar
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 28.03.2018
Pronounced on : 10.04.2019
CORAM
THE HONOURABLE MR.JUSTICE R. SURESH KUMAR
Crl.A.No.605 of 2014
A.E.Sivaprakasam ... Appellant / Complainant
Vs
G.T.Sairam ... Respondent / Accused
Criminal Appeal filed under Section 378 of the Criminal
Procedure Code, against the Judgment in C.C.No.64 of 2011, dated
21.12.2012 passed by the learned Judicial Magistrate No.V, Vellore,
pursuant to the directions issued in C.A.No.7 of 2013, dated
25.07.2014 passed by the learned Principal District and Sessions
Judge, Vellore.
For Appellant : Mr.L.Rajasekar
For Respondent : Mr.D.A.Sugumar
JUDGMENT
This Criminal Appeal has been preferred against the order passed in C.A.No.7 of 2013, by order, dated 25.07.2014 on the file of the Principal District and Sessions Judge, Vellore, which was directed against the Judgment and acquittal made in C.C.No.64 of 2011, dated 21.12.2012 by the Judicial Magistrate No.V, Vellore. http://www.judis.nic.in 2
2. The necessary facts which are to be noticed for disposal of this appeal are as follows :
(i) That the appellant is the complainant before the trial Court and the respondent herein is the accused. Hence for the sake of convenience, they are termed as complainant and accused respectively.
(ii) The accused borrowed a sum of Rs.1 lakh from the complainant on 05.05.2010 for his family urgent expenses and business purposes and the accused agreed to repay the same to the complainant on demand with interest of 24% p.a. This transaction was witnessed by persons who were present on that occasion.
(iii) While so, when the complainant pressed for repayment of the principal amount with interest, the accused had paid two months interest of Rs.4,000/- to the complainant on 10.01.2011 and the accused also had issued a post-dated cheque on 10.01.2011, dated 04.02.2011 drawn on Karnataka Bank, Sathuvachari Branch, bearing Cheque No.320193 for a sum of Rs.1 lakh and had assured to the complainant that, on presentation of the cheque, it would be honoured. Accordingly, the complainant presented the cheque for collection through his bank, namely Arcot Co-operative Urban Bank on 30.03.2011, however the same was returned by the Bank as unpaid http://www.judis.nic.in 3 on 05.04.2011 for the reasons "Funds insufficient". Thereafter the complainant issued legal notice under Section 138 of the NI Act (herein after referred to as "the NI Act") on 23.04.2011, which was received by the accused on 25.04.2011. However the accused has not come forward to pay the cheque amount, nor he has chosen to give any reply to the said notice.
(iv) This actions on the part of the accused triggered the complainant to prefer private complaint before the trial Court, i.e., Judicial Magistrate No.V, Vellore by invoking Section 138 of the NI Act.
(v) The said complaint was taken on file as C.C.No.64 of 2011. After issuing summons, on appearance, copies were given to the accused and thereafter trial was commenced. During the trial, on the side of the complainant, two witnesses were examined, i.e., P.W.1 and P.W.2 and five documents were marked, i.e., Ex.P.1 to Ex.P.5. On the side of the complainant, three witnesses were examined, i.e., D.W.1 to D.W.3 and one document was marked, i.e., Ex.D.1.
(vi) The trial Court after having considered the merits of the case projected by both sides, i.e., complainant as well as the accused, ultimately found the accused not guilty and accordingly, the learned Judge of the trial Court dismissed the complaint and the accused was http://www.judis.nic.in 4 acquitted from the offence punishable under Section 138 of the NI Act in terms of Section 256(1) of the Cr.P.C. The said Judgment was made on 21.12.2012.
(vii) As against the said Judgment of acquittal made by the trial Court on 21.12.2012 in C.C.No.64 of 2011, the complainant preferred appeal in C.A.No.7 of 2013 before the Principal District and Sessions Judge, Vellore. During the pendency of the appeal, a miscellaneous petition in Crl.M.P.No.730 of 2013 was filed by the accused seeking the indulgence of the appellate Court to dismiss the appeal on the ground that, appeal against the acquittal by the complainant in private complaint should have been filed only under Section 378(4) of the Cr.P.C, after obtaining leave from the High Court and without resorting to such a procedure, since the complainant has preferred the appeal, i.e., C.A.No.7 of 2013 before the Sessions Court, the same should be dismissed for want of jurisdiction.
(viii) The said petition filed by the accused as against the appeal preferred by the complainant before the Sessions Court was refuted and on behalf of both sides, i.e., for complainant as well as accused, arguments were heard by the learned Sessions Judge, who acted as an appellate Court and ultimately the learned first appellate Court, i.e., Sessions Judge by the impugned Judgment in C.A.No.7 of http://www.judis.nic.in 5 2013 dismissed the appeal on the ground that, appeal should be preferred by the complainant only before the High Court under Section 378(4) of Cr.P.C. Pursuant to the said Judgment of the first appellate Court, i.e., the Sessions Judge made in C.A.No.7 of 2013 allowing Crl.M.P.No.730 of 2013, dated 25.07.2014, the present appeal has been preferred by the complainant.
3. I have heard the learned counsel appearing for both the complainant as well as the accused and also considered the materials placed before this Court.
4. In the Judgment, dated 25.07.2014, the first appellate Court, i.e., the learned Sessions Judge, after having taken into account some of the Judgments of other High Courts and also the Judgment of the Hon'ble Apex Court has come to a conclusion that, the complainant within the meaning of the definition given for the word "Victimology" could not have preferred appeal against the order of acquittal in a private complaint before the Sessions Court, instead he should prefer appeal only before the High Court invoking Section 378(4) of Cr.P.C.
5. In the said Judgment, the first appellate Court has rejected the appeal on the ground that, the appellant / complainant having invoked the proviso to Section 372 Cr.P.C had preferred the http://www.judis.nic.in 6 said appeal, however only a victim can file such appeal invoking the proviso to Section 372 Cr.P.C. In this regard, the learned Judge has relied upon the Judgment of the Rajasthan High Court and also relied upon the Judgment of the Andhra Pradesh High Court. The learned Judge also very much relied upon the Judgment of Nagpur Bench of the Bombay High Court in the matter of M/s. Top Notch Infortroniz.
6. By relying all these decisions, the learned first appellate Court Judge has come to a conclusion that, the complainant ought not to have invoked the proviso to Section 372 Cr.P.C and he should have invoked only Section 378(4) of Cr.P.C and after getting leave the appeal should be preferred only to the High Court and not to the Sessions Court. By giving such conclusion, the learned Judge has decided to accept the plea raised by the accused in Crl.M.P.No.730 of 2013 and accordingly allowed the said Crl.M.P, thereby dismissed the C.A.No.7 of 2013 filed by the complainant.
7. Since the said Judgment was made on 25.07.2014 and only thereafter the issue had been decided by the authoritative pronouncement of a Full Bench of this Court, probably the learned Judge of the first appellate Court had come to these conclusion by relying upon various other High Court Judgments. http://www.judis.nic.in 7
8. In this context, it is to be noted that, the issue as to whether the victim / complainant can prefer appeal against the order of acquittal before the Court where ordinarily the appeal would lie under proviso to Section 372 of the Code of Criminal Procedure was the issue. Ultimately that issue had been referred to a Full Bench, where these questions were posed in the matter of S.Ganapathi v. N.Senthilvel reported in 2016 (4) CTC 119. The following six questions were posed by the learned single Judge who wanted to refer the matter to the Full Bench, which are reproduced hereunder :
" 1. Whether a victim of a crime, who has prosecuted an accused by way of a private complaint, does not have statutory right of appeal against acquittal under proviso to Section 372 of the Code of Criminal Procedure ?
2. Whether a complainant, in a private compliant case, who is not a victim, has got the remedy to seek only leave to file appeal under Section 378(4) of the Code of Criminal Procedure in the event of acquittal of the accused ?
3. In a private complaint case, if a victim does not happen to be a complainant and in the event of acquittal, whether he has got right of appeal under proviso to Section 372 of the Code of Criminal Procedure or he has to seek leave to file appeal under Section 378(4) of the Code of Criminal Procedure ?
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4. Whether a victim in a case instituted on a police report, has a better place in the criminal justice delivery system than a victim in a private complaint case ?
5. Whether the term ?victim? as defined in Section 2(wa) of the Code of Criminal Procedure excludes a complainant in a private complaint case, though he has suffered loss or injury on account of the offence committed against him ? and
6. Whether the view held in the judgment of this Court in Selvaraj Vs.Venkatachalapathy, reported in 2015 (1) MWN (Cr) DCC 26 (Mad.), reflects correct exposition of law or the same requires to be overruled ?"
9. Pursuant to which, the Full Bench was constituted, where the Full Bench in the matter of S.Ganapathi v. N.Senthilvel reported in 2016 (4) CTC 119, by Judgement dated 05.04.2016, has given its answers to six questions posed before them, which reads thus :
"31. Since, subsequent to the Full Bench reference, the Supreme Court in Satyapal Singh interpreted these provisions, we are duty bound to follow the same to the extent it binds us. With that in mind and in the light of the above legal precedents and the discussion, we answer the questions posed by the Referral http://www.judis.nic.in Judge as follows:-9
(1) A victim of the crime, who has prosecuted an accused by way of a private complaint, has a statutory right of appeal within the limits prescribed under Section 372 of Cr.P.C. (2) A complainant (in a private complaint), who is not a victim, has a remedy and can file an appeal in the event of acquittal of the accused after obtaining leave to appeal under Section 378(4) of Cr.P.C (3) In a private complaint, even if the victim is not a complainant, he has a right to appeal under the proviso to Section 372 of Cr.P.C., but he has to seek leave as held by the Supreme Court in Satyapal Singh.
(4) The term "victim" has been correctly interpreted by the Full Bench of the Delhi High Court in Ramphal and we are in agreement with the same.
(5) A victim (as defined under Section 2(wa) of the Cr.P.C does not cease to be a victim merely because he also happens to be a complainant and he can avail all the rights and privileges of a victim also and (6) The decision of the Single Judge in Selvaraj holding that the term "victim" found in Section 372 excludes a complainant, is not legally correct and in a given case, a complainant, who is also a victim, can avail right granted under Section 372 of Cr.P.C."
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10. In view of the said authoritative pronouncement of the Full Bench of our High Court, it has been abundantly clarified with utmost clarity that, what is the role of a victim and what is the role of the complainant in a case of private complaint and in the context where, a private complaint is dismissed on merits and the accused is acquitted, as against which, whether a victim can prefer appeal under Section 372 proviso of Cr.P.C to the concerned appellate Court or he must invoke Section 378(4) of Cr.P.C by obtaining leave to Appeal, before the High Court.
11. The said issue has been completely answered and by virtue of that, pursuant to the amendment which brought the said proviso to the said Section 372 Cr.P.C from 01.01.2010, the victim has got right to prefer appeal against the order of acquittal by the trial Court only to the regular appellate Court, where normally appeal would lie against the order of conviction and not before the High Court invoking Section 378(4) of the Code.
12. The said Judgment in the matter of S.Ganapathy v. N.Senthilvel, referred to above has been made by the Full Bench, after having exhaustively looked the issue in depth and number of decisions of the Hon'ble Apex Court as well as various High Courts have been http://www.judis.nic.in 11 considered and the Judgment made by the Honble Apex Court in Satypa Pal Singh was also taken note of and in fact followed by the Full Bench.
13. Following the said Full Bench Judgment in Ganapathi's case, two learned Judges of this Court have transferred number of criminal appeals before this Court filed directly under Section 378(4) of the Code, after getting leave as against the order of acquittal made by the trial Court (Magisterial level) and all those cases have been transferred to the concerned Principal Sessions Judges with a direction to allot the cases to the appellate Court / Sessions Court.
14. In this context, it is to be mentioned that, I had some occasions to deal with the similar issue, particularly after the Full Bench Judgment in Ganapathi's case (cited supra).
15. In this context in a batch of Criminal Appeals, i.e., Crl.A.No.308 of 2014 etc., batch in the matter of Shanmugasundaram v. S.Mani, reported in 2017 (3) MLJ (Crl) 591, after having considered all these aspects, I have passed order on 12.07.2017, where also a number of appeals of this nature had been placed before me for decision. In the said Judgment of Shanmugasundaram's case, I have passed the following order :
"2. All these appellants had set the law in motion http://www.judis.nic.in 12 by filing private complaints for the alleged offences in the respective cases before the concerned jurisdictional courts.
3. After trial, the trial Court concerned have acquitted the accused.
4. Being aggrieved by the said acquittal, the victims of the crime/complainants invoking Section 378 of the Code of Criminal Procedure, 1973 ( in short, 'the Code') have preferred these appeals directly to this Court in the year either 2014 or 2015.
5. It is pertinent to be noted that Section 372 of the Code has underwent amendment under the Code of Criminal Procedure Amendment Act (Act 5 of 2009) with effect from 31.12.2009. As per the said amendment, a proviso was inserted in Section 372 which reads thus:
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.]
6. Though such a proviso was inserted through http://www.judis.nic.in the said amendment in Section 372, still victims 13 seem to have chosen to file appeals against acquittal to this Court under Section 378 of the Code.
7. On 27.4.2015, a learned single Judge of this Court, on the issue, as to whether or not the appeal shall be filed before the First Appellate Court / Sessions Court concerned as against the acquittal made by the trial Court, by a victim / complainant, has referred the matter for consideration by a Full Bench by framing six questions which are given herein below:
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9. In view of the said authoritative pronouncement of the Full Bench as cited supra, a learned single Judge of this Court also in the matter of D. Prabhu Vs. R.Manikandan 2016 3 MWN (CR) DCC 169 (Mad) by order dated 14.11.2016 had held that, appeals preferred against the acquittal of the accused in the proceedings initiated by a private complainant will lie only to the respective Sessions Court and the same would not lie before this Court.
10. Based on the said Full Bench pronouncement, followed by another order passed by the learned Judge as cited supra, a batch of criminal appeals of the year 2010 and 2011 were grouped together and heard by another learned Judge and he has passed an http://www.judis.nic.in order in all those batch of appeals by his order 14 dated 09.1.2017 in Crl.A.No.36 of 2010 etc., batch, in the matter of Zen Global Financial Services Vs. P.N.Shivaprasad.
11. The learned Judge (Hon'ble Mr. Justice S.Baskaran) on 09.1.2017, has passed the following order: ?. Thus, as per the conclusion arrived at by the Full Court in the reference cited above, the victim of a crime, who initiated prosecution of the accused by filing a private complaint, can prefer appeal, in the event of acquittal of the accused by the trial Court, only to the respective Sessions Court. The same is clear from the proviso to Section 372 of Cr.P.C.
Following the conclusion of the Full Bench in the reference cited above, a single Judge of this Court (S.Nagamuthu, J.) in the case reported in D.Prabhu Vs. R.Manikandan 2016 (3) MWN (Cr) DCC 169 (Mad), by order dated 14.11.2016, held that the appeals preferred against acquittal of the accused in the proceedings initiated by private complainant will lie only to the respective Sessions Courts and the same would not lie before this Court.
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13. In view of the said Judgment of the Full Bench as well as the other two orders of the learned respective single Judges and also in view of the submissions made by the counsels http://www.judis.nic.in appearing for the appellants, this Court is 15 inclined to dispose of all these appeals in the following terms: (i) These criminal appeals are disposed of, along with connected original petitions and miscellaneous petitions, by transferring the same to the respective Principal Sessions Courts; (ii) On receipt of the transferred cases, it is for the Sessions Court to take up and dispose the appeals or make over the same to the Additional Sessions Court for disposal, in accordance with law. (iii) Before taking up the appeal by the Sessions Court concerned, due notices be served to both parties; (iv) Since these appeals are pending for some years before this Court, priority can be given for these appeals for disposal, and accordingly, these appeals can be disposed of as expeditiously as possible.
14. Registry is directed to send these case bundles with all connected records of the lower Court, if any received, to the concerned Sessions Court forthwith."
15. Like the above order in Shanmugasundaram v. S.Mani, hundreds of appeals of this nature had been transferred to the concerned first appellate Court through the concerned Principal District and Sessions Court for appropriate allotment and decision.
16. When that being so, the stand taken by the learned http://www.judis.nic.in Sessions Judge, i.e., the appellate Court in C.A.No.7 of 2013, by 16 allowing the Crl.M.P.No.730 of 2013 triggered the complainant to prefer the present appeal, against the order of acquittal made by the trial Court in C.C.No.64 of 2011, dated 21.12.2012 by invoking Section 378(4) of Cr.P.C, of course after getting a leave.
17. Since this Crl.A.No.605 of 2014 was entertained after getting leave in this regard in the year 2014, as at that time, the Full Bench Judgment of S.Ganapathy v. N.Senthilvel, referred to above was not available, as the said Judgment of the Full Bench was issued only on 05.04.2016, number of appeals including the present appeal have been entertained by this Court under Section 378(4) of Cr.P.C. But the fact remains that, if pursuant to the said order passed by the Full Bench in the authoritative Judgment of this Court (Madurai Bench) in S.Ganapathy v. N.Senthilvel, since number of appeals were transferred from this Court to the first appellate Court, this Court has no hesitation to hold that, the decision rendered by the learned Judge in C.A.No.7 of 2013 is erroneous, accordingly, the said order, dated 25.07.2014 made in Crl.M.P.No.730 of 2013 is hereby set aside.
18. In the result, this Criminal Appeal is disposed of, along with connected original Petitions and miscellaneous petitions, by transferring the same to the Principal Sessions Courts, Vellore;
(ii) On receipt of the transferred case, it is for the Principal http://www.judis.nic.in 17 Sessions Court, Vellore to take up and dispose the appeal or make over the same to the Additional Sessions Court for disposal, in accordance with law.
(iii) Before taking up the appeal by the Sessions Court concerned, due notices be served to both parties;
(iv) Since this appeal is pending for some years before this Court, priority can be given for this appeal for disposal, and accordingly, this appeal can be disposed of as expeditiously as possible.
19. The Registry is directed to send these case bundles with all connected records of the lower Court, if any received, to the concerned Sessions Court, i.e., Principal District and Sessions Court, Vellore, forthwith.
10.04.2019 Index : Yes Speaking Order tsvn To
1. The Principal District and Sessions Court, Vellore.
2. The Judicial Magistrate No.V, Vellore.
3. The Public Prosecutor http://www.judis.nic.in High Court of Madras, Chennai.
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R.SURESH KUMAR, J.
tsvn Judgment in Crl.A.No.605 of 2014 10-04-2019 http://www.judis.nic.in