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MADRAS HIGH COURT
P.R. Shivakumar, J.
Selvaraj —Appellant
versus
Venkatachalapathy —Respondent
Criminal Appeal (MD) No.20 of 2014 and Criminal Revision Case (MD) No.237 of 2014
Decided on 4.8.2014
IMPORTANT POINT
Term “victim” found in proviso to S. 372 Cr. PC not include victim, who is complainant in complaint case, term ”victim” used in said proviso shall be confined to victims in cases instituted otherwise than on complaint.
Headnote:Negotiable Instruments Act, 1881— Section 138 —Criminal Procedure Code, 1973—Section 372 vis a vis 378 — Appeal under — Case ended in acquittal before trial Court — Remedy available to respondent/complainant to approach High Court under S. 378 (4) within period stipulated in Section 378 (5) — Seeking Special Leave to file appeal against acquittal — Instead of adopting such procedure respondent chose to prefer appeal under Proviso to S. 372 Cr. PC before Sessions Court — Appellate Judge either without considering scope of Proviso to S. 372 or in erroneous interpretation of said provision — Assumed jurisdiction and decided appeal — Which went against appellant/accused — HELD — Appellant right in challenging judgment of lower Appellate Judge on ground of absence of jurisdiction. [Para 19]
Result: Appeal allowed.
P.R. Shivakumar, J.—Criminal Appeal No.20 of 2014 has been preferred against the judgment of the learned Additional District and Sessions Judge, Special Court for EC and NDPS Act Case, dated 26.12.2013 pronounced in Crl.A.No.13 of 2011 reversing the judgment of acquittal passed by the learned Judicial Magistrate, Pudukottai in S.T.C.No.124 of 2008. The said case in S.T.C.No.124 of 2008 came to be instituted on a complaint against the appellant for an alleged offence under Section 138 of the Negotiable Instruments Act, 1881. The trial Court acquitted the appellant herein/accused. As against the acquittal, the complainant preferred an appeal before the lower Appellate Court under Section 372 proviso Cr.P.C. The learned lower Appellate Judge allowed the appeal, set aside the order of acquittal passed by the trial Court, convicted the appellant herein/accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs.10,000/- with a further direction to undergo simple imprisonment for three months in case of default in payment of the fine. As against the above said judgment of the appellate Court, the appellant/accused has preferred Criminal Appeal (MD)No.20 of 2014.
2. The respondent in the said Criminal Appeal, namely, the complainant has chosen to file Criminal Revision Case (MD)No.237 of 2014 under Sections 397 read with 401 Cr.PC complaining that the sentence imposed is inadequate and praying for enhancement of punishment. Both the cases are taken up together and are being disposed of by this common judgment.
3. The arguments advanced by Mr. M. Karunanithi, learned counsel for the appellant in Criminal Appeal (MD) No.20 of 2014 who is the respondent in Criminal Revision Case (MD) No. 234 of 2014 (accused) and Mr. P. Ganapathisubramanian, learned counsel for the respondent in the Criminal Appeal/Petitioner in the Criminal Revision Case (complainant) are heard. The materials available on record are also perused.
4. In this judgment, the appellant and the respondent in Crl.A(MD)No.20 of 2014 shall be referred to as ?appellant? and ?respondent? respectively.
5. Learned counsel for the appellant in Criminal Appeal/ respondent in Criminal Revision Case (accused) without adverting to the facts of the case confined his arguments with regard to the challenge made to the judgment of the lower appellate Court on a legal issue namely, jurisdiction of the lower appellate Court to entertain the appeal.
6. According to the submissions made by the learned counsel for the appellant, an appeal against an order of acquittal passed in a case instituted on complaint shall be governed by Section 378 (4) and (5) of Code of Criminal Procedure, 1973 and the right of appeal conferred on the victim under Section 372 proviso shall not be available to a victim who is also the complainant when the criminal case was instituted based on his complaint. To strengthen his submission, learned counsel for the appellant (accused) took the Court through the relevant provisions cited above and argued that the proviso to Section 372 Cr.P.C should be understood in the light of the object sought to be achieved by the amending Act introducing the amendment and that if such an approach is made, this Court cannot come to any other conclusion than the one in support of his contention.
7. It is the contention of the learned counsel for the appellant that a proviso should not be read disjunctively or independent of the main provision and that it should be interpreted either as an explanation or as an exception to the main provision, as the case may be. According to the submissions made by the learned counsel for the appellant, Section 372 reiterates the point which has been incorporated in the Code that no appeal will lie against any order or judgment unless such an appeal is provided in any other provision of the Code and that the same is the reason why the Sectio
