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2023 Supreme(Cal) 646
IN THE HIGH COURT AT CALCUTTA
AJAY KUMAR GUPTA, J.
Bahidul Sk. – Appellant
Versus
The State of West Bengal & Anr. – Respondents
C.R.R. 504 of 2020
Decided on : 03-05-2023
Advocate Appeared:
For the Appellant : Mr. Kallol Mondal, Adv. Mr. Krishan Ray, Adv. Mr. Souvik Das, Adv. Mr. Shamsher Ansari, Adv. Mr. Ayan Mondal, Adv.
For the Respondent: Mr. Madhusudan Sur, Adv. Mr. Manoranjan Mahata, Adv.
Headnote:
Indian Penal Code, 1860 – Section 420, 34 – Criminal Procedure Code, 1973 – Section 2(wa), 156, 372 – Appeal – Quashing of Proceedings – Cheating and dishonestly inducing delivery of property - Whether the de facto complainant terms as ‘victim’ in view of definition mentioned under Section 2(wa) of CrPC in a case based on police report - Whether de facto complainant is entitled to file an appeal invoking the provision of Section 372 of Cr.P.C. as ‘victim’ before the learned Sessions Judge to which an appeal lies against conviction - Held, Loss caused due to reason or act of omission for which accused person has been charged - If de facto complainant suffered loss then he is a ‘victim’ as per section 2 (wa) of Criminal Procedure Code - There is a clear provision to file appeal by victim under Section 372 of the Criminal Procedure Code, 1973 against any order passed by Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to Court of Sessions to which an appeal ordinarily lies against order of conviction of such Court – Appeal allowed.
JUDGMENT :
Ajay Kumar Gupta, J:
1. This revisional application has been filed by the petitioner against an order dated 06.01.2020 passed by the Learned Sessions Judge in Criminal Appeal No. 2/2018 arising out of judgment and order of acquittal dated 05.12.2017 passed by the Learned Chief Judicial Magistrate, Malda in connection with G.R. Case No. 315 of 2008 arising out of Kaliachak Police Station Case No. 56 of 2008 dated 10th February, 2008 under Section 420 of the Indian Penal Code, 1860, whereby the learned Sessions Judge heard an appeal and dismissed the said appeal as not maintainable because right to prefer an appeal under Section 372 of the Criminal Procedure Code lies with the victim and none else. Further view of the Learned Sessions Judge was that case in hand relates to an offence under Section 420 of IPC, the complainant cannot be termed as ‘victim’ and accordingly the applicability of Section 372 of Cr.P.C. does not arise at all.
2. The case of the petitioner, in brief, is that on 03.04.2005 the petitioner and his brother Aushed Sk entered into an agreement for sale with the opposite party no. 2 to purchase his share in the property in full and final consideration amount of Rs. 2,50,000/-in respect of two plot nos. 204 and 229 of Mouza Mosimpur measuring an area 2 ½ Katas of land. Out of the said amount, the petitioner and his brother have paid a sum of Rs. 71,000/-as advance on the date of execution of the said agreement on 03.04.2005 and a further sum of Rs. 50,000/-on 06.09.2005. It was the condition that within six months from the date of execution of the said agreement for sale, the opposite party no. 2 will execute a registered sale deed in favour of the petitioner and his brother subject to payment of remaining balance consideration amount. Opposite party no. 2 did not register the sale deed in respect of the said property to them rather he cheated the appellant and his brother by selling the said property to a third party. Accordingly, the petitioner moved an application under Section 156 (3) of the Criminal Procedure Code (hereinafter referred to as ‘Cr.P.C.’) before the learned Chief Judicial Magistrate, Malda and on the basis of direction passed by the learned Chief Judicial Magistrate, Malda an FIR was registered vide Kaliachak Police Station Case No. 56 of 2008 dated 10.02.2008 under Section 420/34 of the Indian Penal Code, 1860 against the opposite party no. 2. After completion of investigation, a charge sheet was submitted, charge was framed under Section 420 IPC and trial commenced when he pleaded not guilty and claimed to be tried. Prosecution had examined as many as five witnesses and exhibited number of documents in course of trial.
3. No witnesses adduced from the side of the defence. However, the learned Judge, after marshalling and appreciation of the evidence of the prosecution, finally acquitted the accused/opposite party no. 2 from the charge under Section 420 of the Indian Penal Code in terms of Section 248 (1) of the Code of Criminal Procedure, 1973 vide order dated 05.12.2017. Petitioner, being dissatisfied, had filed an appeal before the Learned Sessions Judge, Malda under Section 372 of the Cr.P.C. and after hearing, learned Sessions Judge dismissed the same on 06.01.2020 on the ground that the appeal is not maintainable as complainant does not come within the definition of ‘Victim’ under Section 2 (wa) of the Cr.P.C. and cannot file appeal under Section 372 of the Cr.P.C.
4. It is necessary to quote the said impugned order dated 06.01.2020 passed, inter alia, by the learned Sessions Judge as follows:-
“Upon cursory reading of the aforesaid provision enshrined in the Code of Criminal Procedure I find that the right to prefer an appeal under section 372 of CrPC lies with the victim and none else. Thus, as the case in hand relates to an offence under section 420 of IPC, the complainant cannot be termed as ‘victim’ and accordingly the applicability of section 372 of CrPC does not arise all.
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