Delhi District Court
Mohd. Sameed vs M/S. Maple Industries & Ors on 18 May, 2012
IN THE COURT OF SHRI A.K. JAIN: ASJ03: SE: SAKET COURT
COMPLEX : NEW DELHI
C.A. No. 144/12
Mohd. Sameed
Proprietor of M/s. Invouge
Block No. 6, House No. 18,
Dr. Ambedkar Nagar, New Delhi
...........Appellant
Versus
M/s. Maple Industries & Ors.
.................Respondents
ORDER
1. By way of present appeal, appellant has challenged the impugned Judgment dated 31/01/2012 passed by the ld. Trial Court acquitting the respondents of offence U/s. 138 of NI Act.
2. Facts in brief are that the appellant had filed two separate complaints U/s. of 138 NI Act against the respondent for dishonouring of cheques, which were issued in discharge of some professional charges. In one of complaint the accused were convicted but in another complaint accused were acquitted. Present appeal is filed against judgment of acquittal.
3. This court at threshold directed the appellant to satisfy the maintainability of the present appeal.
4. Ld. Counsel for the appellant submitted that the present appeal is Mohd. Sameed vs. Maple Industries & Ors., CA No. 144/12 page no. 1 of 7 maintainable because amendment in section 372 of Cr. P.C. gives right to appeal to victims also and complainant falls in the category of the victim. Ld. Counsel for the appellant also relied upon order passed by Hon'ble High Court of Punjab & Haryana in case titled as Rajkumar vs. M/S Gulab Chand, Crl. M.C. No. 597MA2010, Baljeet Kaur Vs. Swaran Singh, Crl. Rev. No. 462/07; M/s. Juneja Vs. Manpreet Singh, Crl. M.C. M10041/10 and Gurnam Singh Vs. State of Punjab, Crl. Rev. No. 2259/2008, wherein Hon'ble High Court had observed that order of acquittal u/s. 138 N I Act passed by the . Trial Court could be challenged in appeal before the Sessions Court.
5. Heard submissions of appellant
6. By way of Amendment of 2008, a Proviso was added to Section 372 to give a right to appeal to the victims. The statutory definition of the word 'victim' defined in section 2(wa) of Cr.P.C. However, word 'victim' has not been defined to include as a 'complainant' as well. The word used is only 'victim' whereas Section 378 (4) Cr.P.C deals with 'complainant'. The legislature in its wisdom has only inserted a provision of appeal to the victim under Section 372 Cr.P.C without making any changes in Section 378 particularly sub Section (4) & (5). Had it been the intention of the legislature to include complainant also in the definition of the word 'victim', they would have said so in plain and clear language. The very fact that no amendment was carried out in Section 378 (4) & (5) goes on to show the legislative intent in not disturbing the present scheme of appeal and only providing a forum of Mohd. Sameed vs. Maple Industries & Ors., CA No. 144/12 page no. 2 of 7 appeal to the victims. It appears the amendment with respect to the victims was made only with a view to give them a right to file an appeal against the order of acquittal as before the amendment, there was no such right available today to them to file such an appeal.
7. Hon'ble High Court of Madhya Pradesh in the case titled as 'Dharamveer Singh Tomar Vs. Ramraj Singh Tomar reported in MANU/MP/0038/2011, in Para 6 dealt question of maintainability:
6. In the present case, the points that arise for consideration are that (i) Whether in case of acquittal by Judicial Magistrate First Class, complainant can prefer appeal to Sessions Court under Section 372 of Code of Criminal Procedure? and (ii) Whether in case of acquittal by Judicial Magistrate First Class complainant can only prefer appeal before High Court under Section 378 (4) of Code of Criminal Procedure and cannot prefer appeal under Section 372 of Code of Criminal Procedure?
8. After noting the amended Section 372 Cr.P.C and definition of the word 'victim' and Provision of Section 378 Cr.P.C, the Hon'ble High Court reached the conclusion that the only remedy available to the applicant/complainant of complaint case is to prefer appeal against the judgment of acquittal before the Hon'ble High Court under Section 378 Mohd. Sameed vs. Maple Industries & Ors., CA No. 144/12 page no. 3 of 7 (4) of the Code of Criminal Procedure.
9. Same is the effect of another judgment dated 16.06.11 of Hon'ble High Court of Bombay in the case of 'Top Notch Infotronix (I) Pvt. Ltd. Vs. Infosoft Systems' reported in MANU/MH/0759/2011. In this case also, the Hon'ble High Court held that the forum for appeal against an order of acquittal would not be the Sessions Court under Section 372 Cr.P.C but the High Court under Section 378 (4) Cr.P.C. The Hon'ble High Court noted the need for amendment to Section 372 Cr.P.C in the following words : " Para 6 Before Act of 2008 came into force, "victim" in a criminal case, instituted on a police report, had no right to file an appeal against the order of acquittal to any Court. However, in a complaint case, right in the form of provisions under Section 378(4) of the Code of Criminal Procedure was already in existence. The Law Commission in its 154th report recommended comprehensive amendments to the Code of Criminal Procedure relating to various provisions concerning arrest, custody, compounding of offences, victim logy etc. In the statement of objects and reasons of Act of 2008 it is mentioned in para 2 that " at present, the victims are the worst sufferers in a crime and they don't have much role in the court proceedings. They need to be given certain rights and compensation, so Mohd. Sameed vs. Maple Industries & Ors., CA No. 144/12 page no. 4 of 7 that there is no distortion of the criminal justice system.
Para7 Thus based on the 'doctrine of victim logy' proviso to Section 372 and the definition of 'victim' have been incorporated w.e.f 31st December 2009 thereby the victims have not been left at the mercy of the State Government or the Central Government (as the case may be ) or the District Magistrate. The aforesaid provision does not in any manner affect provisions of Section 378(4) of the Code of Criminal Procedure dealing with the appeal against the order of acquittal in any case instituted upon complaint."
10. In case of Shanta Ram Vs. Deepak of Bombay High Court reported in MANU/MH/0668/2011, wherein the complaint under Section 138 of Negotiable Instruments Act was dismissed by the trial court and the accused were acquitted. Aggrieved by the dismissal order and the consequent acquittal, the complainant sought leave to appeal under Section 378 Cr.P.C before the Hon'ble High Court which was objected by the accused in view of provisions of the amended Section 372 Cr.P.C. The Hon'ble High Court after noting the Provisions of Section 372, 378 & 2 (wa) of Cr.P.C came to the conclusion that in the cases where the state does not opt to file appeal against the judgment and order of Mohd. Sameed vs. Maple Industries & Ors., CA No. 144/12 page no. 5 of 7 acquittal, there was no remedy of appeal available to the original complainants and the only remedy of revision before the Hon'ble High Court was provided to them. The Hon'ble High Court further observed that by way of introduction of Proviso to Section 372 Cr.P.C and definition of 'victim' under clause (wa) of Section 2 of Cr.P.C, right has been conferred upon a victim to file an appeal against the judgment and order of acquittal. It was further held that in cases in which the State either shows lethargy or does not pursue the matter for ensuring that the offenders are booked, the victim may legitimately step into litigation to ensure the prosecution of culprits and thereby getting solace and compensation, the Proviso of Section 372 Cr.P.C was introduced, conferring a right on such a victim. The Hon'ble High Court thus held that Proviso to Section 372 Cr.P.C does not apply to acquittals for the offence punishable under Section 138 of N.I. Act, and it is only Section 378 (4) of Cr.P.C which applies in the cases of acquittal passed in any case instituted upon complaint.
11. Ld. counsel, however, relied upon the order of Hon'ble Punjab & Haryana High Court allowing appellants to file appeal before sessions court u/s. 372 Cr.P.C. but no ratio was discussed in those judgments with regard to the provisions i.e, section 372 and 378 (4) Cr.P.C. However, in view of above noted exhaustive judicial pronouncements, I have no hesitation to hold that the present appeal filed by the appellant against impugned order of acquittal do not lie before this court. Thus, present appeal stands dismissed being not maintainable. Mohd. Sameed vs. Maple Industries & Ors., CA No. 144/12 page no. 6 of 7
12. Copy of this order be sent to ld. trial court forthwith. File be consigned to record room after due compliance.
Announced in the open court (AJAY KUMAR JAIN)
on 18h May, 2012 ASJ03/SE/New Delhi
Mohd. Sameed vs. Maple Industries & Ors., CA No. 144/12 page no. 7 of 7