Delhi District Court
Raj Kumar vs Sanjeev Gupta) on 7 May, 2022
IN THE COURT OF SH. LOKESH KUMAR SHARMA
ADDL. SESSIONS JUDGE (SFTC) :
DWARKA COURTS : NEW DELHI
CNR No: DLSW010031112020
CA No: 139/2020
U/s: 374 CrPC
U/s: 138 N.I.Act
PS: Palam Village
(In CC No: 5002411/2016
Raj Kumar v/s Sanjeev Gupta)
Raj Kumar
S/o Late Sh. Layak Ram
R/o: H.No. WZ893, Badhiyal Mohalla,
Palam Village, New Delhi - 110045
....APPELLANT
Versus
1. The State
(Govt. of NCT of Delhi)
2. Sanjeev Gupta
S/o Sh. M.P.Gupta
R/o: H.No. D228, Near Old Gurudwara,
Raj Nagar Part - II, Palam Colony,
New Delhi - 110045
....RESPONDENT(s)
Date of Institution : 17.03.2020
Judgment reserved on : 04.05.2022
Date of Decision : 07.05.2022
JUDGMENT
1. Vide this judgment, I shall decide the issue of maintainability of this appeal in its present form which has arisen CA No: 139/2020 Page 1 of 9 out of the impugned judgment dated 25.02.2020 passed by Sh. Umesh Kumar, the then ld. MM in CC No: 5002411/2016 titled as Raj Kumar v/s Sanjeev Gupta, whereby ld. MM was pleased to acquit the accused who is the respondent no. 2 herein for an offence u/s 138 N.I.Act.
2. Feeling aggrieved from the aforesaid judgment, the appellant has preferred the present appeal under Section 372 (proviso) which gives the right to a victim of an offence to file an appeal against any order passed by the Court either acquitting the accused or convicting him for a lesser offence or imposing inadequate compensation and it has been provided further that such an appeal shall lie to the Court to which ordinarily it shall lie against the order of conviction of such Court.
3. The notice of this appeal was accepted by the State and respondent no. 2 was also served who had caused his appearance through Counsel Sh. A.N.Agarwal.
4. At the very outset, an objection was raised on behalf of respondent no. 2 regarding the maintainability of appeal in the present form as it was contended and argued by ld. Counsel appearing for respondent no. 2 that the appeal in the present form is not maintainable as it has been specifically provided under Section 378(4) CrPC that if an order of acquittal was passed in any case instituted upon a complaint, then it was incumbent upon CA No: 139/2020 Page 2 of 9 the affected party to have moved an application before Hon'ble High Court of Delhi seeking leave to appeal and only after obtaining the permission to leave to appeal from the Hon'ble High Court, then he can file an appeal against the said order of acquittal before the Hon'ble High Court itself.
5. Since Sh. Omprakash Sharma, ld. Counsel representing the appellant was not well, hence, the case was adjourned awaiting his wellness on five dates from 07.04.2021 till 06.12.2021. However, in the meantime, ld. Counsel for the appellant had filed written submissions on record as he was unable to appear physically before the Court.
6. I have gone through the written submissions filed on behalf of the appellant in support of his plea of maintainability of the appeal in its present form, wherein, he had referred to the judgment of Hon'ble Apex Court passed in Mallikarjun Kodagali (Dead) represented through Legal Representatives v/s State of Karnataka & Ors., 2019 (2) JCC 1206, wherein, Hon'ble Apex Court had dealt with the issue of victim vizaviz the term 'complainant' and had also determined the issue as to who was covered within the definition of 'victim' so as to enable him to prefer an appeal under Section 372 (proviso) CrPC.
7. In the light of the aforesaid citation, it was submitted on behalf of appellant that since Section 378(3) CrPC was CA No: 139/2020 Page 3 of 9 already in existence for so long i.e., much prior to the insertion of proviso to Section 372 CrPC by an amendment vide Act no. 5 of 2009, despite knowing fully well and despite existence of aforesaid section, it cannot be imagined that the Legislature did not know about Section 378 CrPC and had read only upto Section 372 CrPC.
8. It has been submitted further that since the term "victim" does not find its mention in Section 378 CrPC, hence it has no relevance with the case of 'victim' who can only file an appeal under proviso appended to Section 372 CrPC.
9. Similarly, he had also referred to three Judges Bench decision of Hon'ble Allahabad High Court in Manoj Kumar Singh v/s State of U.P., and Ors., 2015 (5) RCR (Crl.) 129, which had also discussed the mandate of Full Bench decision of Hon'ble Punjab and Haryana High Court in case titled as Tata Steel v/s M/s Atma Tube Products Ltd., and others, (2014) 173 (1) PunLR 1.
10. It was thus submitted on behalf of appellant that the term 'victim' which also included his/ her close relatives who were ignored since long despite the fact that they had suffered immense loss or injury and thus in order to give them an importance, this proviso was inserted in the statute books so as to enable them to press for their legal rights.
CA No: 139/2020 Page 4 of 911. Lastly on the merits of the case, it was stated that Section 138 N.I.Act was not merely a criminal offence rather it was based upon the documentary evidence and complainant was only required to prove the documentary evidence and not beyond any reasonable doubt, which the complainant had already done in this case and since the accused had even failed to reply to the legal notice, nor, he had examined any witness in his defence. Rather he had also admitted the issuance of cheque, hence, the judgment of acquittal passed against the appellant herein was gross injustice towards him, therefore, was liable to be set aside.
12. I have examined the citation relied upon and placed on record by ld. Counsel in the case of Mallikarjun Kodagali (Dead) (supra), wherein the Hon'ble Supreme Court was examining the legality and the scope and ambit of Section 372 CrPC for the purpose of determining the 'victim' who could have filed an appeal under Section 372 (proviso).
13. It shall be further pertinent to point out here that said case had arisen out of the State case and the Hon'ble Supreme Court was posed with the question of deciding as to which of the relative, kith and kin was qualified to be a 'victim' to be eligible to prefer an appeal in the State case. Hon'ble Supreme Court in the said case had also dealt with the judgment of Full Bench of Hon'ble Punjab and Haryana High Court in case titled as Tata CA No: 139/2020 Page 5 of 9 Steel (supra). However, despite the fact that Hon'ble Apex Court in para no. 44 of the said judgment itself had observed that the aforesaid judgment of Hon'ble Punjab and Haryana High Court was much more than elaborate but for the purpose of its examination, the Hon'ble Apex Court had restricted itself only with respect to two questions dealt by the said judgment.
1. Whether the 'rights' of 'victim' under the amended CrPC are accessory and auxiliary to those perceived to be the exclusive domain of the State?
2. Whether proviso to Section 372 CrPC inserted with effect from 31.12.2009 is prospective or retrospective in nature and whether a revision petition pending against an order of acquittal before the insertion of said proviso, can be converted into an appeal and transferred to the Court of competent jurisdiction?
14. Therefore, it is amply clear that the aforesaid judgment rendered by the Hon'ble Punjab and Haryana High Court, so far as it deals with the rights of the complainant in a complaint case, was neither touched upon, nor discussed by the Hon'ble Apex Court in the cited case and hence the findings of the Hon'ble Punjab and Haryana High Court in the said case remained binding and legally valid even as on date.
15. Similarly, Hon'ble Apex Court in the aforesaid case had also dealt with the Full Bench decision rendered by the Hon'ble High Court of Delhi in Ram Phal v/s State & Ors., 2015 (151) DRJ 562. In the said judgment, Hon'ble High Court CA No: 139/2020 Page 6 of 9 of Delhi was pleased to hold that it would be the date of decision rendered by the Court and not the date of commission of offence which shall be important to arrive at a conclusion regarding maintainability of an appeal filed by the 'victim' of an offence under Section 372 (proviso) and though an offence might have been committed prior to 31.12.2009, however, if the judgment in the said case was rendered after the said date, then victim would essentially have a right to challenge the same by way of an appeal under Section 372 (proviso).
16. It shall be further pertinent to mention here that in the aforesaid case of Mallikarjun (supra), whereas the majority view was that a 'victim' was not required to obtain any leave of High Court for preferring an appeal under Section 372 CrPC whereas, Hon'ble Mr. Justice Deepak Gupta, J., (as his lordship then was) had rendered a dissenting view that 'victim' was still required to seek leave to appeal u/s 378(3) CrPC.
17. So far as the citation of the case titled as Manoj Kumar v/s State of U.P. and Ors., 215(3) Crimes (HC) 533 of Hon'ble Allahabad High Court, relied upon by ld. Counsel for the appellant is concerned, I have no hesitation in holding that the same is not a full Bench decision as contended by the appellant. Rather it was the judgment rendered by Hon'ble Division Bench, which had not decided the issue before it in a conclusive manner and was pleased to refer the matter to a larger CA No: 139/2020 Page 7 of 9 Bench. Furthermore, the said judgment had also dealt with the definition of victim.
18. So far as the reliance on the case titled as Bir Singh v/s Mukesh Kumar, 2019 (2) JCC 1553, as well as case titled as Kaushalya Devi Massand v/s Roop Kishore Khore, (2011) 4 Supreme Court Caes 593, are concerned, the same dealt with the law pertaining to Section 138 N.I.Act and are not relevant for the purpose of determining the maintainability issue.
19. After carefully examining both the provisions of law, I am of the considered opinion that Legislature while incorporating the proviso to Section 372 CrPC, was fully aware of the existence of provisions of Section 378(4) CrPC and it had no intention to make the provisions of Section 378(4) CrPC redundant. Otherwise, nothing could have prevented the Legislature to have deleted the aforesaid provision from the Statue Books while inserting the said proviso.
20. Even otherwise, Section 372 CrPC deals with the situation where no appeal would lie unless otherwise provided in the law and Section 378(4) CrPC does not deal with challenge of the acquittal etc., in State cases, rather it specifically mentions about the appeal to be preferred in cases which were instituted on a complaint, which would essentially include an appeal arising against an acquittal in case of complaint filed under Section 138 CA No: 139/2020 Page 8 of 9 N.I.Act as well and it further specifically provides that no appeal shall lie in such a case against the order of acquittal, unless the leave to appeal has been obtained from the Hon'ble High Court and thereafter the appeal is presented before it.
21. In view of the aforesaid observations, I have no hesitation in holding that present appeal as filed in its present form is not maintainable and the appropriate remedy for the appellant was to move an application seeking special leave to file an appeal before the Hon'ble High Court of Delhi. Appeal is therefore dismissed being not maintainable.
22. Appeal file be consigned to record room after compliance of necessary legal formalities. Copy of the judgment along with TCR be sent back to the Court concerned for information and compliance.
ANNOUNCED IN THE OPEN COURT DATED: 07.05.2022 Digitally signed LOKESH by LOKESH KUMAR KUMAR SHARMA Date: 2022.05.07 SHARMA 14:31:08 +0530 (LOKESH KUMAR SHARMA) ADDL. SESSIONS JUDGE (SFTC) DWARKA COURTS : NEW DELHI CA No: 139/2020 Page 9 of 9