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KERALA HIGH COURT
K.T. Sankaran & M.L. Joseph Francis, JJ.
Omana Jose —Petitioner
versus
State of Kerala —Respondent
Crl. Rev. Pet. Nos.2334 & 2338 of 2013 (B)
Decided on 11.4.2014
For the Petitioner:Mr. Abraham Vakkanal, Sr. Advocate, Mr. Paul Abraham Vakkanal, Mr. Prasun S., Mr. Dijo Sebastian & Mrs. Vineetha Susan Thomas, Advocates.
For the Respondent:Mr. T.N. Hareendran & PP, Mr. K.K. Rajeev, Advocates.
IMPORTANT POINT
In a complaint case, appeal against the order of acquittal will lie to the High Court and not to the Sessions Court.
Headnote:(a) Negotiable instruments Act, 1881—S. 138—Criminal Procedure Code 1973—Sections 372 and 378(4)—Offence of dishonour of cheque—Appeal against acquittal—Offence under Section 138 being on a complaint case, appeal against acquittal, would lie to the High Court under Section 378(4) and not to the Court of Sessions—Even after Amendment Act No. 5 of 2009, sub-Section (4) has been kept intact so appeal would not lie under S. 372 Cr.P. C.
Facts of the case and findings of the court.
Before the amendment of the Code of Criminal Procedure, the remedy of the complainant in a case instituted on complaint against the order of acquittal of the accused was to file an appeal before the High Court under Section 378(4) provided special leave to appeal granted by the High Court. Section 378(4) continues in the Code even after the amendment brought out by Act 5 of 2009, by which the definitions of ‘victim’ and after a proviso to Section 372 of the Code were inserted. Drastic changes were made in Section 378 by Act 25 of 2005 and even at that time, Section 378(4) was not amended. It cannot be assumed that the Parliament was not aware of the remedy to file an appeal only to the High Court provided under Section 378(4) to challenge an order of acquittal pass in a case instituted upon complaint. Before the amendment, in a case instituted on police report, the victim could challenge the order of acquittal only by filing a revision under Section 397 of Code of Criminal Procedure. (Para 33)
(b) Criminal Procedure Code, 1973—Sections grow (wa), 372 and 378(3)(4)—Insertion of definition of ‘victim’ in Section 2(wa) by Amendment Act of 2009—A victim in a case instituted on police report could challenge the order of acquittal by filing appeal to the Court of Sessions, after said Amendment, however, in a case instituted on complaint, appeal would lie to the High Court.
Facts of the case and finding of the court.
The expression “unless the context otherwise requires” occurring in Section 2 would be a helpful tool for the interpretation of the proviso to Section 372 to resolve the question whether the context requires an interpretation to the term ‘victim’ taking out of its purview, a complainant in a complaint case. On a consideration of the aforesaid provisions of law, held that the expression ‘victim’ requires an interpretation in the context of the provisions in Sections 372 and 378 to exclude the complainant in a complaint case, who is also the victim, from the purview of the definition of victim under Section 2(wa). The principles of harmonious construction and the principle that one section in a statute cannot be used to defeat the provision in another section would enable the Court to come to such a conclusion alone. Such an interpretation would make the textual interpretation to match with the contextual. Comprehending the various principles referred to above in their context and without construing a particular word in isolation and taking the statute as a whole, Court differed from the view taken in Shibu Joseph and others. v. Tomy K.J. and others : 2013 (4) KHC 629 and accept the view taken in Sree Gokulam Chit and Finance Co. (P) Ltd., Kasaragod v. Damodaran N. and another, 2013 (4) KHC 395. (Para 34)
K.T. Sankaran, J.—These Criminal Revision Petitions were referred to the Division Bench in the light of conflicting decisions of this Court in Sree Gokulam Chit and Finance Co. (P) Ltd., Kasaragod v. Damodaran N. and another, 2013 (4) KHC 395 : 2013 (2) KLT SN 99 Case No.126: 2013(3) KLJ 3.and Shibu Joseph and others v. Tomy K.J. and others, 2013(2) KLD 938on the question whether an appeal would lie to the Sessions Court under the proviso to Section 372 of the Code of Criminal Procedure against acquittal of the accused in a case under Section 138 of the Negotiable Instruments Act. In Sree Gokulam Chit’s case, a learned single Judge of this Court held that an appeal would not lie before the Sessions Court and it would lie only before the High Court under Section 378(4) of the Code of Criminal Procedure. In Shibu Joseph’s case, another learned single Judge held that the complainant in a complaint under Section 138 of the Negotiable Instruments Act, being a victim as defined in Section 2 (wa) of the Code of Criminal Procedure, is entitled to file an appeal before the Sessions Court under the proviso to Section 372 of the Code of Criminal Procedure challenging an order of acquittal. In Shibu Joseph’s case, the learned single Judge referred to the decision in Sree Gokulam Chit’s case. However, that decision was not followed on the ground that “the various provisions regarding the rights conferred on the victim were not considered” in Sree Gokulam Chit’s case.
2. When these Criminal Revision Petitions came up before the learned single Judge who decided Sree Gokulam Chit’s case, the Revisions were referred to the Division Bench as per the order dated 9.12.2013.
3. In the present Criminal Revision Petitions, the complaint cases under Section 138 of the Negotiable Instruments Act were disposed of by the Additional Chief Judicial Magistrate (Economic Offences), Ernakulam and the accused were acquitted. On appeal by the complainants before the Sessions Court, the acquittal was confirmed. The complainants in the cases have filed the Criminal Revision Petitions.
4. The contention that an appeal would lie against an order of acquittal in a case under Section 138 of the Negotiable Instruments Act is taken on the basis of the insertion of the definition of ‘victim’ in Section 2(wa) and insertion of the proviso to Section 372 of the Code of Criminal Procedure, both by the Code of Criminal Procedure Amendment Act 2008 (Act 5 of 2009). The expression ‘victim’ is defined in Section 2(wa) of the Code of Criminal Procedure, as follows:
“2. Definitions.— In this Code, unless the context otherwise requires,—
(wa) “ victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir;”
5. Section 372 of the Code of Criminal Procedure provides that no appeal shall lie from any judgment or order of a Criminal Court except as provided for by the Code or by any other law for the time being in force. The proviso was inserted by Act 5 of 2009, which reads as follows:
“Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.”
6. Section 378 of the Code of Criminal Procedure was amended by the Code of Criminal Procedure (Amendment) Act, 2005 (Act 25 of 2005).
7. Section 378 of the Code of Criminal Procedure before its amendment by Act 25 of 2005 and after the amendment by Act 25 of 2005 read as follows:
“(Before amendment) S.378. Appeal in case of acquittal.— (1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub- sections (3) and (5), the State Government may, in any case, direct the Public Prosecutor to present an appeal
