Delhi District Court
Arun Kumar vs Sh. Sita Ram Singhal on 12 October, 2012
1 CA No. 16/12
IN THE COURT OF SH MAHESH CHANDER GUPTA :
ADDITIONAL SESSIONS JUDGE - IV (OUTER DISTRICT) :
ROHINI : DELHI
CRIMINAL APPEAL No. 16/12
In the matter of
Arun Kumar
S/o Sh. M.P. Mittal
R/o D16/238, Sector3
Rohini, Delhi
and Presently at M3
Karamyogi Enclave
Kamla Nagar, Agra, U.P.
.....Appellant
Versus
Sh. Sita Ram Singhal
S/o Sh. R.R. Singhal
R/o Kothi No.1, Sanjay Gram
Opposite Sector14, Delhi Road
Gurgaon, Haryana.
......Respondent
Judgment reserved on : 26.09.2012
Judgment announced on : 12.10.2012
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JUDGMENT
1. This criminal appeal has been preferred by the appellant for enhancement of sentence awarded to respondent vide order on sentence dated 28.01.2012 passed by the Court of Ld. Metropolitan Magistrate Outer District, Rohini Courts, Delhi, arising out of case CC No. 4458/1/01, titled Arun Kumar Vs. Sita Ram Singhal, u/s 138 r/w Section 141 of the Negotiable Instruments Act & Section 420 of IPC, PS Rohini whereby Ld. Trial Court sentenced the respondent/accused to pay compensation of Rs. 20,000,000/ to the appellant and sentenced the respondent/accused to undergo imprisonment for three months u/s 138 Negotiable Instruments Act.
2. Briefly stated that facts giving rise to the filing of the present appeal are that the appellant/complainant filed the complaint u/s 138 Negotiable Instruments Act (in short N.I.Act) and led the pre summoning evidence thereupon respondent/accused was summoned to face the trial u/s 138 N.I. Act. After supplying the copies of the complaint and documents respondent/accused was served notice u/s 138 N.I.Act which was read over and explained to him to which he 2 of 11 3 CA No. 16/12 pleaded not guilty and claimed trial. Appellant/complainant examined two witnesses. CW1 Arun Kumar, the complainant himself and CW2 K.L. Gupta. Statement of the respondent/accused recorded u/s 313 Cr.P.C wherein he pleaded innocence and false implication and opted to lead defence evidence and in his defence examined five witnesses. DW1 Sh. Vivekanand Jha, DW2 Sh. Parveen Kumar Shah, DW3 Sh. Rajender Kumar, DW4 Sh. Ram Dayal and DW5 Sh. A.K. Srivastva. After hearing the Ld. Counsel the Ld. Trial Court passed the judgment of conviction dated 05.01.2012 and order on sentence dated 28.01.2012. Feeling aggrieved by the said order on sentence, the present appeal has been filed by the appellant.
3. After filing of appeal, notice of appeal was given to the respondent and the trial court record was also summoned.
4. On the pleadings of the parties a preliminary question was framed as under:
Whether the appeal is maintainable under section 372 Cr. P.C?
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5. Ld. Counsel for respondent/accused submitted that the appeal is not maintainable under section 372 proviso Cr.P.C, as it does not provide for any right of appeal to the victim for enhancement of sentence. As such the appeal deserves to be dismissed.
6. Ld. Counsel for Appellant, on the other hand submitted that appeal is maintainable. The order of sentence is highly inadequate and against the provisions of law of Section 138 N.I. Act. Double of the cheque amount has to be paid as the compensation. He further submitted that the Ld. Trial Court has passed the order without appreciating the facts & evidence placed on the record. The appellant is facing trial since 1987 and has suffered pain, agony and mental harassment and also the monetary loss. He further submitted that the Ld. Trial Court add by taking a lenient view while passing the sentence upon the respondent. He further submitted that as per the provisions of Section 138 N.I. Act the respondent be punished with imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of the cheque or with both. He further submitted that the order on sentence is inadequate and against the provisions and principles of natural justice and is liable to be enhanced.
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7. I have heard the Ld. Counsel for the parties and have also carefully perused the entire record.
8. Firstly, two preliminary questions arises in this appeal for consideration,
1). Whether appellant is "Victim" for the purposes of proviso to Section 372 IPC.
2). Whether the appeal for enhancement of sentence filed by the appellant by virtue of being a "Victim" is maintainable under the Proviso to Section 372 Cr.P.C.
9. Section 372 Cr.P.C provides for no appeal to lie unless otherwise provided.
It reads as under:
372. No appeal to lie unless otherwise provided.
No appeal shall lie from any judgment or order of a Crimianl Court except as provided for by this Code or by any other law for the time being in force: 5 of 11 6 CA No. 16/12 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. Section 2 (wa) Cr.P.C defines "victim".
It reads as under: Definitions:
2. In this Code, unless the context otherwise requires, (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.
10.Undisputably, the complaint u/s 138 N.I. Act r/w Section 141 of the N.I. Act was filed by the appellant/complainant and it is he who had suffered any loss or injury caused by reason of the act or omission for which the respondent/accused has been charged, convicted and sentenced.
6 of 11 7 CA No. 16/12 In the circumstances, the appellant qualifies the criterion of "victim" as defined u/s 2 (wa) Cr.P.C as reproduced herein above, therefore, appellant is held to be a "victim" for the purposes of Proviso to Section 372 Cr.P.C.
It is to be mentioned as to, who is a victim u/s 2 (wa) and who can be regarded a victim for the purposes of Proviso 2 to Section 372 Cr.P.C also came up for consideration before the Hon'ble Delhi High Court in cases:
Chattar Singh Vs. Subhash & Ors. 211 II AD (Delhi) 252; Kareemul Hazari Vs. State of NCT of Delhi & Ors. 211 II AD (Delhi) 210.
The first preliminary question is accordingly dealt with.
11. Now coming to the second preliminary question;
12.It is also not in dispute that respondent/accused had been charged, convicted and sentenced for the offence u/s 138 N.I. Act vide impugned order on sentence dated 28.01.2012.
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13.It is not the case of the appellant that respondent/accused was charged for the offence u/s 138 N.I. Act but has been convicted and sentenced for a "lesser offence" i.e for an offence which is minor to the offence u/s 138 N.I. Act.
14.The expression "lesser offence" though used in Proviso to Section 372 IPC has not been defined anywhere in the Code of Criminal Procedure, yet an expression "minor offence" has been used in Section 222 Cr.P.C.
Section 222 Cr.P.C provides for When Offence proved included in offence charged.
It reads as under:
222. When offence proved included in offence charged. (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
8 of 11 9 CA No. 16/12 (3) When a person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.
Illustrations
(a) A is charged under section 407 of the Indian Penal Code (45 of 1860) with criminal breach of trust in respect of property entrusted tok him as a carrier. It appears, that he did commit criminal breach of trust under section 406 of that Code in respect of the property, but that it was not entrusted to him as a carrier. He may be convicted of criminal breach of trust under the said section 406.
(b) A is charged under section 325 of the Indian Penal Code (45 of 1860), with causing grievous hurt. He proves that he acted on grave and sudden provocation. He may be convicted under section 335 of that Code.
What is meant by a minor offence for the purpose of Section 222? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well, only if the two offences are cognate, wherein the main 9 of 11 10 CA No. 16/12 ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence visavis the other offence. (Reliance placed on Sham Saheb Vs. State (2001) 2 SCC 577).
15. A close scrutiny of Proviso to Section 372 Cr.P.C as reproduced here inabove clearly indicates that interalia the victim has not been given any right to appeal for seeking enhancement of sentence.
16. In case titled National Commission for Women Vs. State of Delhi and another (2010) 12 SCC 599, the Hon'ble Supreme Court has held that Section 372 proviso Cr.P.C confers a right only on victim and also does not envisage appeal against inadequate sentence.
17.In view of above discussion, the present appeal for enhancement of sentence awarded to respondent/accused vide order on sentence dated 28.01.2012, filed by the appellant by virtue of being a "victim" for the purposes of Proviso to Section 372 Cr.P.C, is held to be not maintainable under Proviso to Section 372 Cr.P.C. The appeal is accordingly dismissed being nonmaintainable.
10 of 11 11 CA No. 16/12 A copy of this judgment be supplied to the appellant free of costs. The Trial Court record alongwith a copy of this judgment be sent back.
The criminal appeal file be consigned to record room. Announced in the open Court (MAHESH CHANDER GUPTA) on 12th Day of month of October, 2012. Addl. Sessions Judge - IV (Outer) Rohini, Delhi.
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