AI Structured Summary
Not yet generated for this judgment
Judgment
S.P. Garg, J.—The challenge in these appeals is to judgments dated 02.03.2012 in CC No.4625/10 and dated 22.05.2012 in CC No.20806/10 by which the complaint cases u/s 138 of the Negotiable Instruments Act, 1881 (in short ''N.I. Act'') filed by the appellant against the respondents resulted in their acquittal.
The appeals have been preferred u/s 372 of the Code of Criminal Procedure (in short ''Cr.P.C.''). By an order dated 21.01.2013, learned counsel for the appellant was asked to satisfy if against an acquittal order in a complaint case, appeal would lie u/s 372 Cr.P.C. or special leave to appeal would have to be sought u/s 378 Cr.P.C.
I have heard the learned counsel for the parties on this limited legal question and have examined the record. Appellant''s counsel urged that after the Amendment Act 5 of 2009, amending Section 372 Cr.P.C. incorporating a right of appeal to the victims and also introducing definition of ''victim'', as per Section 2(wa) of Cr.P.C., the appellant being the complainant-cum-victim was entitled to prefer appeals against orders of acquittal u/s 138 N.I. Act u/s 372 Cr.P.C. Learned counsel for the respondents challenging the maintainability of appeals u/s 372 Cr.P.C. urged that proper remedy to impugn acquittal orders was to file SLP under Section 378(4) Cr.P.C. Section 372 Cr.P.C. was not intended to cover the complainants, who already had statutory remedies to file appeals.
Admitted position is that the appellant is aggrieved by the orders of acquittal in complaint cases u/s 138 N.I. Act. Moot question is whether an acquittal order can be challenged u/s 372 Cr.P.C. or special leave is required to prefer an appeal u/s 378(4) Cr.P.C. Various High Courts have taken different views and are at variance on this issue. The decisions are not uniform.
Single Bench of Kerala High Court in ''Sree Gokulam Chit and Finance Co.(P) Ltd. and another vs. T.Krishnakumar and others'', (Crl.L.P.No.620/2013 and connected cases, decided on 30.10.2013) was of the view that ''victim'' u/s 2(wa) would include ''complainant'' in a complaint case filed u/s 138 N.I. Act and therefore, as a matter of right, would be entitled to prefer appeal as provided u/s 372 Cr.P.C. Similar is the view taken by the High Court of Calcutta in ''National Plywood Industries vs. State of West Bengal'', CRR No.2816/2012 and CRAN No.3690/2012, decided on 12.03.2013. Giving liberal interpretation to the definition of the ''victim'' u/s 2(wa) read with Section 2(y) of Cr.P.C. along with definition of ''injury'' u/s 44 IPC and Section 22 IPC, it held that non-encashment of the cheque causes ''injury'' to the person in whose favour cheque has been issued. The holder of the cheque is to be determined both complainant and victim. High Court of Jharkhand in ''Mahesh Kumar Sinha vs. The State of Jharkhand and anr.'', Acquittal Appeal (DB) No.4 of 2013, decided on 15.04.2013, in a detailed judgment observed that when the victim and the complainant are the same person(s), then the complainants have a right to prefer statutory appeal u/s 372 Cr.P.C. The appellant therein had sought leave to prefer appeal u/s 378(4) Cr.P.C. to impugn acquittal order in the proceedings instituted u/s 138 N.I. Act.
In Ashok Kumar Srivastava and Others Vs. State of U.P. and Another, , decided by High Court of Allahabad on 30.03.2012, a complaint case was filed by the victim u/s 200 Cr.P.C. The accused persons were acquitted of the charges under Sections 498A/323/504/506 IPC and 3/4 Dowry Prohibition Act. The Allahabad High Court held that u/s 372 Cr.P.C. the complainant who was a ''victim'' was entitled to prefer an appeal u/s 372 Cr.P.C.
High Court of Bombay has been consistent in its approach and in various decisions have taken the view that complainant in a private complaint which ends up in acquittal is not entitled to take the benefit of the proviso of Section 372 Cr.P.C. In ''Ganesh Bandu Badgujar vs. Mangalabai Ashokbhai Patel and The State of Maharashtra'', Crl.Revision Application No.100/2013, decided on 09.12.2013 against acquittal order in the proceedings u/s 138 N.I. Act, it held that the appeal u/s 372 IPC was not maintainable. The proviso to 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 persons who were affected by the decision of the Court, but who had not been given right to file any appeal under the provisions of the Code, to challenge such decision by filing an appeal.
Decisions of the Rajasthan High Court are conflicting. In ''Laxmilal Menariya and ors. vs. Rajendra Kumar and ors.'' S.B.Criminal Leave to Appeal No.193/2011; ''Ram Avtar Gupta vs. Ravindra Kumar'', S.B.Criminal Leave to Appeal No.230/2011 and ''Ashok Kumar vs. State of Rajasthan'', S.B.Criminal Leave to Appeal No.6/2012 decided on 01.05.2012, it was held that the remedy to challenge the acquittal u/s 138 N.I. Act was u/s 372 Cr.P.C. However, in ''Nathu Ram Bansal vs. State of Rajasthan and anr.'', S.B.Criminal Leave to Appeal No.74/2012 decided on 28.02.2013, a contrary view was taken and it was held that against an order on acquittal u/s 138 N.I. Act the appeal would lie u/s 378(4) Cr.P.C. only by way of filing an application for special leave to appeal. The view taken by the learned Single Judge in ''Laxmilal Menariya and ors. vs. Rajendra Kumar and ors.'' (supra) was considered not a good law. Again in ''Porwal Trading Corporation (M/s) vs. M/s.Global Syntex (BHL) Ltd. and anr.'', S.B.Criminal Leave to Appeal No.100/2012 decided on 22.03.2013, the said High Court taking support from ''Laxmilal Menariya and ors. vs. Rajendra Kumar and ors.'' (supra) held that the appeal was to lie u/s 372 Cr.P.C. observing that the judgment in ''Nathu Ram Bansal vs. State of Rajasthan and anr.'' (supra) was of no help as the impact of amended proviso to Section 372 Cr.P.C. was not considered in proper perspective therein.
Punjab and Haryana High Court has taken still another view in ''M/s.Tata Steel Ltd. vs. M/s. Atma Tube Products Ltd. and ors.'', in CRM.No. 790-MA of 2010 decided on 18.03.2013 by Full Bench. The relevant findings on the issue are :
(83)" The above discussion thus can be summed up to say that
(i) the ,,complainant in a complaint-case who is a ,,victim also, shall continue to avail remedy of appeal against acquittal u/s 378(4) only except where he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an inadequate compensation, for which he/she succeeds in establishing the guilt of an accused but is aggrieved at the conviction for a lesser offence or imposition of an adequate compensation, for which he/she shall be entitled to avail the remedy of appeal under proviso to Section 372;
(ii) the ,,victim, who is not the complainant in a private complaint-case, is not entitled to prefer appeal against acquittal under proviso to Section 372 and his/her right to appeal, if any, continues to be governed by the unamended provisions read with Section 378(4) of the Code;
(iii) the Legislature has given no separate entity to a ,,victim in the complaint-case filed by a public servant under a special Statute and the appeal against acquittal in such a case can also be availed by the ,,complainant of that case u/s 378(4) of the Code only.
(iv) those ,,victims of complaint-cases whose right to appeal have been recognized under proviso to Section 372, are not required to seek ,,leave and ,,special leave to appeal from the High Court in the manner contemplated u/s 378(3) and (4), for the Legislature while enacting proviso to Section 372 has prescribed no such fetter nor has it applied the same language used for appeals against acquittals while enacting sub-Section (3) and (4) of Section 378 of the Code."
At the outset, it may be mentioned that discussion would be restricted only to the remedy available in complaint cases instituted u/s 138 N.I. Act, in case they end up in acquittal i.e. whether to prefer appeal u/s 372 or 378(4) Cr.P.C.
Chapter XVII comprising Section 138 to Section 142 N.I. Act was introduced in the Statue by Act of 66 of 1988. The object underlying the provision contained in the said chapter was aimed at inculcating faith in the efficacy of banking operations and giving credibility to the negotiable instruments as a trustworthy substitute for cash payment in business and day to day transactions by making dishonour of the such instruments an offence. The said provisions were intended to discourage people from not honouring their commitments by way of payments through cheques. On a mere perusal thereof, it is clear that civil liability of a person has been converted into a criminal offence. Prior to 01.04.1989, in case of dishonour of a cheque, the remedy was to institute civil proceedings for the recovery of the disputed amount. Enforcement of a liability in Civil Court does not debar an aggrieved person from prosecuting the offender for an offence u/s 138 N.I. Act. The filing of civil suit and criminal proceedings are alternate remedies available to the complainant and they create different types of rights in the complainant which he can legally proceed in the Court. Both the proceedings are not only different but are also independent from each other and can be pursued simultaneously. Section 138 N.I. Act primarily is of a quasi civil and criminal nature. u/s 138, the offence is not committed on the date of issuing of the cheque. It happens after it is dishonoured by the bank for specified reasons and thereafter, even after demand the person concerned fails to pay the amount covered by the cheque. The offences are bailable, compoundable and non-cognizable. The proceedings can be instituted only by filing a complaint case u/s 200 before the Court of a competent jurisdiction. No Court is to take cognizance of said offence except upon a complaint in writing made by the payee or the holder in due course of the cheque. No Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any such offence. Needless to say that State / Police has no role to regulate the proceedings / transactions. The proceedings under N.I.Act can well be differentiated from other penal statutes.
Prior to the amendments in Cr.P.C. before 31.12.2009, a complainant in a complaint case initiated u/s 138 N.I. Act could challenge an acquittal order only in an appeal before the High Court u/s 378(4) Cr.P.C. Such appeal would be maintainable only if the appellant / complainant was granted Special Leave to prefer appeal. In my view, amendments w.e.f. 31.12.2009 introducing Section 2(wa) and Section 372 Cr.P.C. did not bring any change in this regard. The purpose and object of the amendment was to provide relief to the ''victims'' of offence who hitherto had practically no role to play in the criminal proceedings and who were to remain as mute spectators even though they were the really affected parties. It was with that object that the amendment to Section 372 Cr.P.C. was made and the definition of ''victim'' was incorporated. It was not to cover a situation where the complainant in a private complaint u/s 138 N.I.Act, already had a remedy by way of appeal for redressal of his grievances. The ''complainant'' in 138 proceedings cannot be equated or treated at par with ''victims'' for whose benefit the amendments have been brought into existence. This was meant for those ''victims'' on whose behalf primarily State used to prosecute the offender(s). In case of acquittal, it was left to the State to challenge the order in appeal and the victim had no say. The amendments in question gave a voice to the victims to challenge the acquittal by filing an appeal u/s 372 Cr.P.C. It was a right conferred upon the victims to prefer an appeal on limited grounds enumerated in the proviso to Section 372 of the Code. It is a separate and independent statutory right and is not dependent either upon or is subservient to the right of appeal of the State. Both the victim and State can file appeals independently without being dependent on the exercise of the right by the other. u/s 372 Cr.P.C., the victim was given substantive right to file appeal not only against acquittal but also if the conviction was for a lesser offence or there was inadequate compensation. State does not have any right to appeal in case of inadequacy of compensation.
In my considered view, the ''complainant'' in the proceedings u/s 138 N.I.Act cannot be considered ''victim'' in the letter and spirit of the definition of Section 2(wa) of the Code and definition of ''injury'' u/s 44 IPC cannot be imported into Section 138 N.I.Act. In every such proceedings at first instance, every complainant considers / claims himself / herself a ''victim''. The complainants in these proceedings cannot be taken at par with those who put criminal law into motion to bring the offenders to book at whose hands, they have sustained ''injury'' as defined in Section 44 IPC. The changes in Cr.P.C. were for ''victims'' who were the worst sufferers in a crime and did not have much role in the Court proceedings. To avoid distortion of the Criminal Judicial System, they were given certain rights.
The controversy now is no longer res integra in view of the pronouncement of law by Supreme Court in Subhash Chand Vs. State (Delhi Administration), . It was a complaint case u/s 7 of Prevention of Food Adulteration Act, in which Subhash Chand was tried and he was acquitted by the learned Metropolitan Magistrate. The State filed criminal appeal before the Sessions Court u/s 378(1)(a) Cr.P.C. Preliminary objection regarding maintainability of the appeal before the Sessions Court was rejected. That order was challenged before this Court (Delhi High Court) and it was held that Sessions Court had no jurisdiction to entertain the appeal. The order of the High Court was challenged before the Supreme Court who remanded the case to this Court for fresh decision after taking into consideration the provisions of Sections 378(1) and 378(4) of Cr.P.C. and the relevant provisions of the Prevention of Food Adulteration Act. After remand, this Court held that the appeal filed by the State against an order of acquittal would lie to the Sessions Court u/s 378(1) of the Cr.P.C. Again, this order was challenged by the accused before the Supreme Court and Supreme Court held :
,,....we conclude that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court. Crl.A.Nos.972/2012 and 1163/2012 Page 12 of 15 He cannot file such appeal in the Sessions Court. The complainant can challenge the order of acquittal by filing an application for special leave to appeal in the Delhi High Court and not in the Sessions Court....
Of course, the scope of Section 372 Cr.P.C. and subsequent amendments in Cr.P.C. (Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) did not come for consideration before the Supreme Court in this case. But it cannot be assumed that the Supreme Court was not aware of the existence of the provisions of Section 372. The Supreme Court further 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 u/s 378(4) for special leave to appeal against it in the High Court. Section 378(4) places no restriction on the complainant...."
No distinction was made if the complainant was a private person or a public servant.
In a recent case Bhavuben Dineshbhai Makwana Vs. State of Gujarat and Others, , Full Bench of Gujarat High Court answering the reference on question number (3) ''If the victim prefers an appeal before this Court, challenging the acquittal, invoking his right under proviso to section 372 of Cr.P.C., whether that appellant is required to first seek leave of the Court, as is required in case of appeal being preferred by the State?'', held :- ''If 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.''
Kerala High Court has also in a latest Division Bench judgment in Omana Jose Vs. State of Kerala, decided on 11.04.2014 on reference of Criminal Revision Petitions in the light of conflicting decisions in ''Sree Gokulam Chit and Finance Co.(P) Ltd. and another vs. T.Krishnakumar and others'', 2013 (4) KLT547 (supra) and Shibu Joseph and Others Vs. Tomy K.J. and Others, , concluded :
"For the aforesaid reasons, we hold that the complainant in a case u/s 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 Crl.A.Nos.972/2012 and 1163/2012 Page 14 of 15 only to file an appeal to the High Court with special leave u/s 378(4) Cr.P.C."
Considering all the relevant provisions, I am of the considered view that the remedy available to the complainants u/s 138 N.I.Act against order of acquittal is only to seek special leave before filing an appeal u/s 378(4) Cr.P.C. before the High Court. In the instant case, the appellant has not sought any such leave. Consequentially the appeals filed by the appellant are dismissed as not maintainable. The appellant will, however, be at liberty to file special leave petitions to challenge acquittal orders before this Court and the period spent by him in contesting the present proceedings would be excluded in considering the delay.