Delhi District Court
M/S Rajni Industries vs Ms. Anjali Chauhan on 17 December, 2020
IN THE COURT OF MS. NEENA BANSAL KRISHNA:
PRINCIPAL DISTRICT & SESSIONS JUDGE,
SOUTH EAST DISTRICT, SAKET COURT, NEW DELHI.
Crl. Revision 891/2019
M/S RAJNI INDUSTRIES
Through Its Sole Proprietor
Ms. Rajni Dua
Through her authorised representative/ signatory
Sh. Rishi Sharma
Office at W-108, Greater Kailash,
Part-II, New Delhi-110048.
......Petitioner
Versus
MS. ANJALI CHAUHAN
W/o Sh. Sandeep Chauhan,
At: 52/02, Near HDFC Bank ATM
Behind 30 Feet Road,
Garima Garden, Sahibabad,
Ghaziabad, U.P.-201005.
......Respondent
Dated of filing of revision : 21.12.2019
Date of hearing of arguments : 02.12.2020
Date of Decision : 17.12.2020
JUDGMENT
A Revision under Section 397/398/399 Cr.P.C has been filed by the Complainant/ Revisionist against the order dated 27.09.2019 dismissing the complaint under Section 138 Negotiable Instruments Act against the respondent.
M/s Rajni Industries Vs. Anjali Chauhan Page 1 of 7 2 The facts in brief are that a complaint case under Section 138 Negotiable Instruments Act was filed against the Respondent. The Ld. M.M vide order dated 22.08.2019 dismissed it in default for non- prosecution and acquitted the accused. Aggrieved by the said order, the present revision has been filed.
3 Ld. Counsel on behalf of the Respondent has taken a preliminary objection in regard to the maintainability of the revision filed by the complainant under Section 378(4) Cr.P.C. It was argued that once the accused/ Respondent has been summoned and subsequently acquitted for whatever reason, the remedy lies by way of an Appeal and not Revision. The only remedy is under Section 378(4) Cr.P.C by way of filing an appeal in Hon'ble Delhi High Court after seeking special leave. The present revision is, therefore, liable to be dismissed. 4 The Ld.Counsel for the Revisionist has countered this argument by asserting that in addition to being the complainant he is also a victim as defined under Section 2(wa) of Cr.P.C and thus, the present appeal is maintainable under Section 372 Cr.P.C.
5 I have heard the arguments and have perused the record. My observations are as under:
6 The short question involved in the present case is whether an revision is maintainable before the Sessions Court under Section 378 (1) M/s Rajni Industries Vs. Anjali Chauhan Page 2 of 7
(a) of Cr.P.C. against an order of acquittal. Proviso of Section 372 Cr.P.C was inserted by Section 29 Cr.P.C [Amendment Act 2008 (5 of 2009)] with the object of giving an opportunity to the person who is affected by the decision of the Court but who did not have any right to file any appeal under the provisions of the Code to challenge such decision by filing an appeal.
7 The Bombay High Court in Ganesh Bandu Badgujar Vs. Mangalabai Ashokbhai Patel Vs. State of Maharashtra Crl. Revision No.100/2013 decided on 09.12.2013 filed against an acquittal order took a view that a complainant who has filed a private complaint which results in an acquittal, is not entitled to take the benefit of the proviso of Section 372 Cr.P.C.
8 In Subhash Chand Vs. State (Delhi Administration) (2013) 2 SCC 17 in a complaint case under Section 7 of Prevention of Food Adulteration Act the accused was acquitted and an appeal was filed before the Sessions Court by the State under Section 378 (1) (a) of Cr.P.C. The matter went up to the Supreme Court. The Hon'ble Supreme Court held that a complainant can file an application for leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file said appeal in the Sessions Court. Thus, a complainant can challenge the order of acquittal by filing an application for special leave to appeal in M/s Rajni Industries Vs. Anjali Chauhan Page 3 of 7 High Court and not in the Sessions Court.
9 The Supreme Court observed:
"Thus, whether a case is a case instituted on a complaint depends on the legal provisions relating to the offence involved therein. But once it is a case instituted on a complaint and an order of acquittal is passed, whether the offence is bailable or non-bailable, cognizable or non- cognizable, the complainant can file an application under Section 378(4) for special leave to appeal against it in the High Court. Section 378(4) places no restriction on the complainant...."
10 No distinction was made if the complainant was a private person or a public servant.
11 Hon'ble Supreme Court in its judgment in Satyapal Singh Vs. State of M.P. & Ors. [2015 (4) MLJ (Crl.) 219 (SC)], in para 11, observed as follows:-
"Thus, from a reading of the above-said legal position laid down by this Court in the cases referred to supra, it is abundantly clear that the proviso to Section 372 of Cr.P.C. must be read along with its main enactment i.e., Section 372 itself and together with Sub-Section (3) to Section 378 of Cr.P.C. otherwise the substantive provision of Section 372 of Cr.P.C. will be rendered nugatory, as it clearly states that no appeal shall lie from any judgment or order of a Criminal Court except as provided by Cr.P.C"
12 Thus, to conclude on the legal issue, it was held thus:
"Whether the appellant herein, being the father of the deceased, has statutory right to prefer an appeal to the High Court against the order of acquittal under proviso to Section 372 of Cr.P.C. without obtaining the leave of the High Court as required under SubSection (3) to Section 378 of Cr.P.C.", M/s Rajni Industries Vs. Anjali Chauhan Page 4 of 7 this Court is of the view that the right of questioning the correctness of the judgment and order of acquittal by preferring an appeal to the High Court is conferred upon the victim including the legal heir and others, as defined under Section 2(wa) of Cr.P.C., under proviso to Section 372, but only after obtaining the leave of the High Court as required under sub-Section (3) to Section 378 of Cr.P.C. The High Court of M.P. has failed to deal with this important legal aspect of the matter while passing the impugned judgment and order."
13 Full Bench of Gujarat High Court in Bhavuben Dineshbhai Makwana Vs. State of Gujarat 2013 Crl. L.J. 4225 answering the reference about maintainability of appeal before Sessions against an order of acquittal held that if the victim also happens to be the complainant and the appeal is against acquittal, he is required to take leave as provided under Section 378 of Cr.P.C. But, if he is not a complainant, then he is not required to apply for or obtain any leave. It held thus:
In our opinion, the correct law, as emerging from the Scheme of the Code, would be that the right of a victim to prefer an appeal (on limited grounds enumerated in proviso to Section 372 of the Code) is a separate and independent statutory right and is not dependent either upon or is subservient to right of appeal of the State. In other words, both the victim and the State/prosecution can file appeals independently without being dependent on the exercise of the right by the other. Moreover, from the act or omission for which the accused has been charged, there may be more than one victim and the loss suffered by the victims may vary from one victim to the other victims. Therefore, each of such victims will have separate right of appeal and in such appeals, the grievance of each of the appellant may be different. For instance, in an 57 act of arson when a joint property of different persons has been set on fire, the loss suffered by each of the co-sharers may be different. In such a case, each co-sharer has a separate right of appeal and such right of one does not depend even on the filing of such appeal by another victim. If the "victim" happens to be the complainant, he being the complainant is required to take leave as there is no consequential amendment of Section 378 of the Code. If M/s Rajni Industries Vs. Anjali Chauhan Page 5 of 7 the victim also happens to be the complainant and the appeal is against acquittal, he is required to take leave as provided in Section 378 of the Criminal Procedure Code but if he is not the complainant, he is not required to apply for or obtain any leave. For the appeal against inadequacy of compensation or punishment on a lesser offence, no leave is necessary at the instance of a victim, whether he is the complainant or not."
14 Similarly, the Kerala High Court in Omana Jose Vs. State of Kerala ILR 2014 (2) Kerala 669 wherein it was held that the complainant in a case under Section 138 of the Negotiable Instruments Act cannot challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the Cr.P.C. and his remedy is only to file an appeal to the High Court with special leave under Section 378 (4) Cr.P.C."
15 The Hon'ble Delhi High Court in Bhajanpura Cooperative Urban Thrift & Credit Society Ltd. Vs. Sushil Kumar 2014 SCC OnLine Delhi 4507 referred to the above mentioned judgments and concluded that the complainant whose complaint under S. 138 NI Act ends in acquittal has a remedy under Section 378(4) Cr.P.C to seek leave for appeal before the High Court of Delhi and cannot resort to Section 372 Cr.P.C. 16 In the present case the Revisionist is the complainant whose complaint under Section 138 NI Act has ended up in acquittal. In view of the law discussed above, the present revision is not maintainable under Section 372 Cr.P.C. The revisionist is at liberty to file the application for M/s Rajni Industries Vs. Anjali Chauhan Page 6 of 7 leave to appeal in terms of Section 378 (4) Cr.P.C before the Hon'ble High Court of Delhi.
17 The present revision is thus, not maintainable and is hereby dismissed. A copy of this order be sent to the Ld. Trial Court along with the Trial Court Record.
Revision file be consigned to record room.
Digitally signed by
NEENA NEENA BANSAL
BANSAL KRISHNA
Date: 2020.12.18
KRISHNA 14:31:14 +0530
ANNOUNCED in the open Court (Neena Bansal Krishna)
th
today on 17 day of December, 2020 Principal District & Sessions Judge South East, Saket Courts New Delhi.
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