High Court · 2019

IN THE HIGH COURT OF JUDICATURE AT MADRASReserved on : 28.03.2018Pronounced on : 10.04.2019CORAMTHE HONOURABLE MR.JUSTICE R. SURESH KUMARCrl.A.No.605 of 2014 A.E.Sivaprakasam ... Appellant/ Appellant/ ComplainantVsG.T.Sairam ... Respondent /Respondent / AccusedCriminal Appeal filed under Section 378 of the CriminalProcedure Code, against the Judgment in C.C.No.64 of 2011, dated21.12.2012 passed by the learned Judicial Magistrate No.V,Vellore, pursuant to the directions issued in C.A.No.7 of 2013,dated 25.07.2014 passed by the learned Principal District andSessions Judge, Vellore. For Appellant : Mr.L.Rajasekar For Respondent : Mr.D.A.Sugumar J U D G M E N TThis Criminal Appeal has been preferred against the orderpassed in C.A.No.7 of 2013, by order, dated 25.07.2014 on thefile of the Principal District and Sessions Judge, Vellore,which was directed against the Judgment and acquittal made inC.C.No.64 of 2011, dated 21.12.2012 by the Judicial MagistrateNo.V, Vellore.2. The necessary facts which are to be noticed for disposalof this appeal are as follows : (i) That the appellant is the complainant before the trialCourt and the respondent herein is the accused. Hence for thesake of convenience, they are termed as complainant and accusedrespectively. (ii) The accused borrowed a sum of Rs.1 lakh from thecomplainant on 05.05.2010 for his family urgent expenses andbusiness purposes and the accused agreed to repay the same tothe complainant on demand with interest of 24% p.a. Thistransaction was witnessed by persons who were present on thatoccasion. https://hcservices.ecourts.gov.in/hcservices/ (iii) While so, when the complainant pressed for repaymentof the principal amount with interest, the accused had paid twomonths interest of Rs.4,000/- to the complainant on 10.01.2011and the accused also had issued a post-dated cheque on10.01.2011, dated 04.02.2011 drawn on Karnataka Bank,Sathuvachari Branch, bearing Cheque No.320193 for a sum of Rs.1lakh and had assured to the complainant that, on presentation ofthe cheque, it would be honoured. Accordingly, the complainantpresented the cheque for collection through his bank, namelyArcot Co-operative Urban Bank on 30.03.2011, however the samewas returned by the Bank as unpaid on 05.04.2011 for the reasons"Funds insufficient". Thereafter the complainant issued legalnotice under Section 138 of the NI Act (herein after referred toas "the NI Act") on 23.04.2011, which was received by theaccused on 25.04.2011. However the accused has not come forwardto pay the cheque amount, nor he has chosen to give any reply tothe said notice.(iv) This actions on the part of the accused triggered thecomplainant to prefer private complaint before the trial Court,i.e., Judicial Magistrate No.V, Vellore by invoking Section 138of the NI Act.(v) The said complaint was taken on file as C.C.No.64 of2011. After issuing summons, on appearance, copies were given tothe accused and thereafter trial was commenced. During thetrial, on the side of the complainant, two witnesses wereexamined, i.e., P.W.1 and P.W.2 and five documents were marked,i.e., Ex.P.1 to Ex.P.5. On the side of the complainant, threewitnesses were examined, i.e., D.W.1 to D.W.3 and one documentwas marked, i.e., Ex.D.1.(vi) The trial Court after having considered the merits ofthe case projected by both sides, i.e., complainant as well asthe accused, ultimately found the accused not guilty andaccordingly, the learned Judge of the trial Court dismissed thecomplaint and the accused was acquitted from the offencepunishable under Section 138 of the NI Act in terms of Section256(1) of the Cr.P.C. The said Judgment was made on 21.12.2012. (vii) As against the said Judgment of acquittal made by thetrial Court on 21.12.2012 in C.C.No.64 of 2011, the complainantpreferred appeal in C.A.No.7 of 2013 before the PrincipalDistrict and Sessions Judge, Vellore. During the pendency of theappeal, a miscellaneous petition in Crl.M.P.No.730 of 2013 wasfiled by the accused seeking the indulgence of the appellateCourt to dismiss the appeal on the ground that, appeal againstthe acquittal by the complainant in private complaint shouldhave been filed only under Section 378(4) of the Cr.P.C, afterobtaining leave from the High Court and without resorting to https://hcservices.ecourts.gov.in/hcservices/ such a procedure, since the complainant has preferred theappeal, i.e., C.A.No.7 of 2013 before the Sessions Court, thesame should be dismissed for want of jurisdiction. (viii) The said petition filed by the accused as against theappeal preferred by the complainant before the Sessions Courtwas refuted and on behalf of both sides, i.e., for complainantas well as accused, arguments were heard by the learned SessionsJudge, who acted as an appellate Court and ultimately thelearned first appellate Court, i.e., Sessions Judge by theimpugned Judgment in C.A.No.7 of 2013 dismissed the appeal onthe ground that, appeal should be preferred by the complainantonly before the High Court under Section 378(4) of Cr.P.C.Pursuant to the said Judgment of the first appellate Court,i.e., the Sessions Judge made in C.A.No.7 of 2013 allowingCrl.M.P.No.730 of 2013, dated 25.07.2014, the present appeal hasbeen preferred by the complainant.3. I have heard the learned counsel appearing for both thecomplainant as well as the accused and also considered thematerials placed before this Court.4. In the Judgment, dated 25.07.2014, the first appellateCourt, i.e., the learned Sessions Judge, after having taken intoaccount some of the Judgments of other High Courts and also theJudgment of the Hon'ble Apex Court has come to a conclusionthat, the complainant within the meaning of the definition givenfor the word "Victimology" could not have preferred appealagainst the order of acquittal in a private complaint before theSessions Court, instead he should prefer appeal only before theHigh Court invoking Section 378(4) of Cr.P.C.5. In the said Judgment, the first appellate Court hasrejected the appeal on the ground that, the appellant /complainant having invoked the proviso to Section 372 Cr.P.C hadpreferred the said appeal, however only a victim can file suchappeal invoking the proviso to Section 372 Cr.P.C. In thisregard, the learned Judge has relied upon the Judgment of theRajasthan High Court and also relied upon the Judgment of theAndhra Pradesh High Court. The learned Judge also very muchrelied upon the Judgment of Nagpur Bench of the Bombay HighCourt in the matter of M/s. Top Notch Infortroniz. 6. By relying all these decisions, the learned firstappellate Court Judge has come to a conclusion that, thecomplainant ought not to have invoked the proviso to Section 372Cr.P.C and he should have invoked only Section 378(4) of Cr.P.Cand after getting leave the appeal should be preferred only tothe High Court and not to the Sessions Court. By giving suchconclusion, the learned Judge has decided to accept the plea https://hcservices.ecourts.gov.in/hcservices/ raised by the accused in Crl.M.P.No.730 of 2013 and accordinglyallowed the said Crl.M.P, thereby dismissed the C.A.No.7 of 2013filed by the complainant.7. Since the said Judgment was made on 25.07.2014 and onlythereafter the issue had been decided by the authoritativepronouncement of a Full Bench of this Court, probably thelearned Judge of the first appellate Court had come to theseconclusion by relying upon various other High Court Judgments.8. In this context, it is to be noted that, the issue as towhether the victim / complainant can prefer appeal against theorder of acquittal before the Court where ordinarily the appealwould lie under proviso to Section 372 of the Code of CriminalProcedure was the issue. Ultimately that issue had been referredto a Full Bench, where these questions were posed in the matterof S.Ganapathi v. N.Senthilvel reported in 2016 (4) CTC 119. Thefollowing six questions were posed by the learned single Judgewho wanted to refer the matter to the Full Bench, which arereproduced hereunder : " 1. Whether a victim of a crime, whohas prosecuted an accused by way of a privatecomplaint, does not have statutory right ofappeal against acquittal under proviso toSection 372 of the Code of Criminal Procedure? 2. Whether a complainant, in aprivate compliant case, who is not a victim,has got the remedy to seek only leave to fileappeal under Section 378(4) of the Code ofCriminal Procedure in the event of acquittalof the accused ? 3. In a private complaint case, if avictim does not happen to be a complainantand in the event of acquittal, whether he hasgot right of appeal under proviso to Section372 of the Code of Criminal Procedure or hehas to seek leave to file appeal underSection 378(4) of the Code of CriminalProcedure ? 4. Whether a victim in a caseinstituted on a police report, has a betterplace in the criminal justice delivery systemthan a victim in a private complaint case ? 5. Whether the term ?victim? asdefined in Section 2(wa) of the Code ofCriminal Procedure excludes a complainant ina private complaint case, though he hassuffered loss or injury on account of the https://hcservices.ecourts.gov.in/hcservices/ offence committed against him ? and 6. Whether the view held in thejudgment of this Court in SelvarajVs.Venkatachalapathy, reported in 2015 (1)MWN (Cr) DCC 26 (Mad.), reflects correctexposition of law or the same requires to beoverruled ?"9. Pursuant to which, the Full Bench was constituted, wherethe Full Bench in the matter of S.Ganapathi v. N.Senthilvelreported in 2016 (4) CTC 119, by Judgement dated 05.04.2016, hasgiven its answers to six questions posed before them, whichreads thus : "31. Since, subsequent to the Full Benchreference, the Supreme Court in SatyapalSingh interpreted these provisions, we areduty bound to follow the same to the extentit binds us. With that in mind and in thelight of the above legal precedents and thediscussion, we answer the questions posed bythe Referral Judge as follows:-(1) A victim of the crime, who has prosecutedan accused by way of a private complaint, hasa statutory right of appeal within the limitsprescribed under Section 372 of Cr.P.C.(2) A complainant (in a private complaint),who is not a victim, has a remedy and canfile an appeal in the event of acquittal ofthe accused after obtaining leave to appealunder Section 378(4) of Cr.P.C (3) In a private complaint, even if thevictim is not a complainant, he has a rightto appeal under the proviso to Section 372 ofCr.P.C., but he has to seek leave as held bythe Supreme Court in Satyapal Singh.(4) The term "victim" has been correctlyinterpreted by the Full Bench of the DelhiHigh Court in Ramphal and we are in agreementwith the same.(5) A victim (as defined under Section 2(wa)of the Cr.P.C does not cease to be a victimmerely because he also happens to be acomplainant and he can avail all the rightsand privileges of a victim also and (6) The decision of the Single Judge inSelvaraj holding that the term "victim" foundin Section 372 excludes a complainant, is notlegally correct and in a given case, acomplainant, who is also a victim, can avail https://hcservices.ecourts.gov.in/hcservices/ right granted under Section 372 of Cr.P.C."10. In view of the said authoritative pronouncement of theFull Bench of our High Court, it has been abundantly clarifiedwith utmost clarity that, what is the role of a victim and whatis the role of the complainant in a case of private complaintand in the context where, a private complaint is dismissed onmerits and the accused is acquitted, as against which, whether avictim can prefer appeal under Section 372 proviso of Cr.P.C tothe concerned appellate Court or he must invoke Section 378(4)of Cr.P.C by obtaining leave to Appeal, before the High Court. 11. The said issue has been completely answered and byvirtue of that, pursuant to the amendment which brought the saidproviso to the said Section 372 Cr.P.C from 01.01.2010, thevictim has got right to prefer appeal against the order ofacquittal by the trial Court only to the regular appellateCourt, where normally appeal would lie against the order ofconviction and not before the High Court invoking Section 378(4)of the Code.12. The said Judgment in the matter of S.Ganapathy v.N.Senthilvel, referred to above has been made by the Full Bench,after having exhaustively looked the issue in depth and numberof decisions of the Hon'ble Apex Court as well as various HighCourts have been considered and the Judgment made by the HonbleApex Court in Satypa Pal Singh was also taken note of and infact followed by the Full Bench.13. Following the said Full Bench Judgment in Ganapathi'scase, two learned Judges of this Court have transferred numberof criminal appeals before this Court filed directly underSection 378(4) of the Code, after getting leave as against theorder of acquittal made by the trial Court (Magisterial level)and all those cases have been transferred to the concernedPrincipal Sessions Judges with a direction to allot the casesto the appellate Court / Sessions Court. 14. In this context, it is to be mentioned that, I had someoccasions to deal with the similar issue, particularly after theFull Bench Judgment in Ganapathi's case (cited supra).15. In this context in a batch of Criminal Appeals, i.e.,Crl.A.No.308 of 2014 etc., batch in the matter ofShanmugasundaram v. S.Mani, reported in 2017 (3) MLJ (Crl) 591,after having considered all these aspects, I have passed orderon 12.07.2017, where also a number of appeals of this nature hadbeen placed before me for decision. In the said Judgment ofShanmugasundaram's case, I have passed the following order : "2. All these appellants had set the law inmotion by filing private complaints for the https://hcservices.ecourts.gov.in/hcservices/ alleged offences in the respective casesbefore the concerned jurisdictional courts. 3. After trial, the trial Court concerned haveacquitted the accused. 4. Being aggrieved by the said acquittal, thevictims of the crime/complainants invokingSection 378 of the Code of Criminal Procedure,1973 ( in short, 'the Code') have preferredthese appeals directly to this Court in theyear either 2014 or 2015. 5. It is pertinent to be noted that Section372 of the Code has underwent amendment underthe Code of Criminal Procedure Amendment Act(Act 5 of 2009) with effect from 31.12.2009.As per the said amendment, a proviso wasinserted in Section 372 which reads thus: 372. No appeal to lie unless otherwiseprovided.- No appeal shall lie from anyjudgment or order of a Criminal Court exceptas provided for by this Code or by any otherlaw for the time being in force: [Provided that the victim shall have a rightto prefer an appeal against any order passedby the Court acquitting the accused orconvicting for a lesser offence or imposinginadequate compensation, and such appeal shalllie to the Court to which an appeal ordinarilylies against the order of conviction of suchCourt.] 6. Though such a proviso was inserted throughthe said amendment in Section 372, stillvictims seem to have chosen to file appealsagainst acquittal to this Court under Section378 of the Code. 7. On 27.4.2015, a learned single Judge ofthis Court, on the issue, as to whether or notthe appeal shall be filed before the FirstAppellate Court / Sessions Court concerned asagainst the acquittal made by the trial Court,by a victim / complainant, has referred thematter for consideration by a Full Bench byframing six questions which are given hereinbelow: .........9. In view of the said authoritativepronouncement of the Full Bench as citedsupra, a learned single Judge of this Courtalso in the matter of D. Prabhu Vs. https://hcservices.ecourts.gov.in/hcservices/ R.Manikandan 2016 3 MWN (CR) DCC 169 (Mad) byorder dated 14.11.2016 had held that, appealspreferred against the acquittal of the accusedin the proceedings initiated by a privatecomplainant will lie only to the respectiveSessions Court and the same would not liebefore this Court. 10. Based on the said Full Benchpronouncement, followed by another orderpassed by the learned Judge as cited supra, abatch of criminal appeals of the year 2010 and2011 were grouped together and heard byanother learned Judge and he has passed anorder in all those batch of appeals by hisorder dated 09.1.2017 in Crl.A.No.36 of 2010etc., batch, in the matter of Zen GlobalFinancial Services Vs. P.N.Shivaprasad. 11. The learned Judge (Hon'ble Mr. JusticeS.Baskaran) on 09.1.2017, has passed thefollowing order: ?. Thus, as per theconclusion arrived at by the Full Court in thereference cited above, the victim of a crime,who initiated prosecution of the accused byfiling a private complaint, can prefer appeal,in the event of acquittal of the accused bythe trial Court, only to the respectiveSessions Court. The same is clear from theproviso to Section 372 of Cr.P.C. Followingthe conclusion of the Full Bench in thereference cited above, a single Judge of thisCourt (S.Nagamuthu, J.) in the case reportedin D.Prabhu Vs. R.Manikandan 2016 (3) MWN (Cr)DCC 169 (Mad), by order dated 14.11.2016, heldthat the appeals preferred against acquittalof the accused in the proceedings initiated byprivate complainant will lie only to therespective Sessions Courts and the same wouldnot lie before this Court. .........13. In view of the said Judgment of the FullBench as well as the other two orders of thelearned respective single Judges and also inview of the submissions made by the counselsappearing for the appellants, this Court isinclined to dispose of all these appeals inthe following terms: (i) These criminalappeals are disposed of, along with connectedoriginal petitions and miscellaneous https://hcservices.ecourts.gov.in/hcservices/ petitions, by transferring the same to therespective Principal Sessions Courts; (ii) Onreceipt of the transferred cases, it is forthe Sessions Court to take up and dispose theappeals or make over the same to theAdditional Sessions Court for disposal, inaccordance with law. (iii) Before taking upthe appeal by the Sessions Court concerned,due notices be served to both parties; (iv)Since these appeals are pending for some yearsbefore this Court, priority can be given forthese appeals for disposal, and accordingly,these appeals can be disposed of asexpeditiously as possible. 14. Registry is directed to send these casebundles with all connected records of thelower Court, if any received, to the concernedSessions Court forthwith." 16. Like the above order in Shanmugasundaram v. S.Mani,hundreds of appeals of this nature had been transferred to theconcerned first appellate Court through the concerned PrincipalDistrict and Sessions Court for appropriate allotment anddecision.17. When that being so, the stand taken by the learnedSessions Judge, i.e., the appellate Court in C.A.No.7 of 2013,by allowing the Crl.M.P.No.730 of 2013 triggered the complainantto prefer the present appeal, against the order of acquittalmade by the trial Court in C.C.No.64 of 2011, dated 21.12.2012by invoking Section 378(4) of Cr.P.C, of course after getting aleave. 18. Since this Crl.A.No.605 of 2014 was entertained aftergetting leave in this regard in the year 2014, as at that time,the Full Bench Judgment of S.Ganapathy v. N.Senthilvel, referredto above was not available, as the said Judgment of the FullBench was issued only on 05.04.2016, number of appeals includingthe present appeal have been entertained by this Court underSection 378(4) of Cr.P.C. But the fact remains that, if pursuantto the said order passed by the Full Bench in the authoritativeJudgment of this Court (Madurai Bench) in S.Ganapathy v.N.Senthilvel, since number of appeals were transferred from thisCourt to the first appellate Court, this Court has no hesitationto hold that, the decision rendered by the learned Judge inC.A.No.7 of 2013 is erroneous, accordingly, the said order,dated 25.07.2014 made in Crl.M.P.No.730 of 2013 is hereby setaside. 19. In the result, this Criminal Appeal is disposed of, https://hcservices.ecourts.gov.in/hcservices/ along with connected original Petitions and miscellaneouspetitions, by transferring the same to the Principal SessionsCourts, Vellore; (ii) On receipt of the transferred case, it is for thePrincipal Sessions Court, Vellore to take up and dispose theappeal or make over the same to the Additional Sessions Courtfor disposal, in accordance with law. (iii) Before taking up the appeal by the Sessions Courtconcerned, due notices be served to both parties; (iv) Since this appeal is pending for some years before thisCourt, priority can be given for this appeal for disposal, andaccordingly, this appeal can be disposed of as expeditiously aspossible. 20. The Registry is directed to send these case bundles withall connected records of the lower Court, if any received, tothe concerned Sessions Court, i.e., Principal District andSessions Court, Vellore, forthwith. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrartsvn To1. The Principal District and Sessions Judge, Vellore. 2. The Judicial Magistrate No.V, Vellore. 3. The Public Prosecutor High Court of Madras, Chennai.Copy toThe Section Officer,Criminal Section,High Court, Madras.+1cc to Mr.L.Rajasekar, Advocate, S.R.No.35059Crl.A.No.605 of 2014SSP(CO)SSM(22/05/2019)