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2013 Supreme(Ker) 1129
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P. Bhavadasan, J.
SREE GOKULAM CHIT AND FINANCE CO. (P) LTD. AND ANOTHER – Appellants
Versus
T. KRISHNAKUMAR AND OTHERS – Respondents
Criminal L.P. No. 620 of 2013
Decided On : 30-10-2013
Advocate Appeared:
For the Appellants : P. Vijayab Banu, S. Sreekumar, Sunny Mathew, S. Rajeev, V. Philip Mathew, Kaleeswaram Raj, S.U. Nazar, V.N. Ramesan Nambisan, Tom Jose Padinjarekkara.
The complainant in a private complaint, who satisfies the definition of victim as contained in Section 2(wa) of Cr.P.C. is entitled to file an appeal as provided under the proviso to Section 372 Cr.P.C. as a matter of right. In case of acquittal of accused on a private complaint, if the complainant is also the victim, he may have two remedies, namely, appeal under the proviso to Section 372 Cr.P.C. as a matter of right, and appeal to High Court after obtaining special leave. But going by the principle of hierarchy of courts, the aggrieved person will have to approach the lower forum which is competent to entertain the appeal. If he avails of one of the two remedies, he is precluded from resorting to the other remedy. The right of appeal under the proviso to Section 372 Cr.P.C. is available in all cases where the judgments are rendered after 31-12-2009. In case of acquittal in a private complaint by the Sessions Court, if the complainant is also the victim, he has a statutory right of appeal as per proviso to Section 372 Cr.P.C. and the stipulation in Section 378(4) Cr.P.C. to obtain special leave may not apply in such a case.
Headnote:
CRIMINAL PROCEDURE CODE - SECTION 372 - APPLICABILITY - PRIVATE COMPLAINT - VICTIM - APPEAL - SCOPE - INTERPRETATION - SECTION 378(4) - RELATIONSHIP - HIERARCHY OF COURTS - LIMITATION.
Fact of the Case:
Various cases involving the applicability of the amended Section 372 of the Code of Criminal Procedure arose for consideration, where the issue was whether the complainant in a private complaint, on which cognizance was taken and which ended in acquittal of the accused, can resort to the new statutory remedy by way of appeal provided u/s 372 proviso or is he confined to the earlier remedy provided for u/s 378(4) Cr.P.C. of filing an appeal before the High Court after obtaining special leave.
Finding of the Court:
The court held that complainants in private complaints, who satisfy the definition of victim as contained in Section 2(wa) of Cr.P.C. are entitled to file an appeal as provided under the proviso to Section 372 Cr.P.C. as a matter of right. The court further held that in case of acquittal of accused on a private complaint, if the complainant is also the victim, he may have two remedies, namely, appeal under the proviso to Section 372 Cr.P.C. as a matter of right, and appeal to High Court after obtaining special leave. But going by the principle of hierarchy of courts, the aggrieved person will have to approach the lower forum which is competent to entertain the appeal. If he avails of one of the two remedies, he is precluded from resorting to the other remedy.
Issues: 1. Whether the complainant in a private complaint, on which cognizance was taken and which ended in acquittal of the accused, can resort to the new statutory remedy by way of appeal provided u/s 372 proviso or is he confined to the earlier remedy provided for u/s 378(4) Cr.P.C. of filing an appeal before the High Court after obtaining special leave? 2. Whether the complainant in a complaint u/s 138 of N.I. Act is also a victim and is entitled to the same benefit as the victim in any other case instituted on a private complaint? 3. Whether in case of acquittal of accused on a private complaint, if the complainant is also the victim, he may have two remedies, namely, appeal under the proviso to Section 372 Cr.P.C. as a matter of right, and appeal to High Court after obtaining special leave? 4. Whether the right of appeal under the proviso to Section 372 Cr.P.C. is available in all cases where the judgments are rendered after 31-12-2009? 5. Whether in case of acquittal in a private complaint by the Sessions Court, if the complainant is also the victim, he has a statutory right of appeal as per proviso to Section 372 Cr.P.C. and the stipulation in Section 378(4) Cr.P.C. to obtain special leave may not apply in such a case?
Ratio Decidendi: 1. The court interpreted the amended Section 372 of the Code of Criminal Procedure and held that the complainant in a private complaint, who satisfies the definition of victim as contained in Section 2(wa) of Cr.P.C. is entitled to file an appeal as provided under the proviso to Section 372 Cr.P.C. as a matter of right. 2. The court held that the complainant in a complaint u/s 138 of N.I. Act is also a victim and is entitled to the same benefit as the victim in any other case instituted on a private complaint. 3. The court held that in case of acquittal of accused on a private complaint, if the complainant is also the victim, he may have two remedies, namely, appeal under the proviso to Section 372 Cr.P.C. as a matter of right, and appeal to High Court after obtaining special leave. But going by the principle of hierarchy of courts, the aggrieved person will have to approach the lower forum which is competent to entertain the appeal. If he avails of one of the two remedies, he is precluded from resorting to the other remedy. 4. The court held that the right of appeal under the proviso to Section 372 Cr.P.C. is available in all cases where the judgments are rendered after 31-12-2009. 5. The court held that in case of acquittal in a private complaint by the Sessions Court, if the complainant is also the victim, he has a statutory right of appeal as per proviso to Section 372 Cr.P.C. and the stipulation in Section 378(4) Cr.P.C. to obtain special leave may not apply in such a case.
Final Decision: The court held that in all cases where the judgment is rendered after 31-12-2009, appeal lies to the court made mention of under the proviso to Section 372 Cr.P.C.
ORDER :
1. A common issue as to the applicability of the amended Section 372 of the Code of Criminal Procedure arises for consideration in all these cases, and hence, they are being disposed of by a common judgment. The issue that is being agitated is whether the complainant in a private complaint, on which cognizance was taken and which ended in acquittal of the accused, can resort to the new statutory remedy by way of appeal provided u/s 372 proviso or is he confined to the earlier remedy provided for u/s 378(4) Cr.P.C. of filing an appeal before the High Court after obtaining special leave.
2. An unimaginative hasty amendment, little aware of its consequences, though intended to be progressive and beneficial, has created confusion regarding the remedy available to certain group of persons. The matter has engaged the attention of various High Courts in the country, but the decisions have not been uniform. While some of the High Courts have taken the view that a complainant in a private complaint, which after trial ends in the acquittal of the accused, can now, if he falls within the definition of victim u/s 2(wa) of Cr.P.C. resort to the remedy by way of appeal as provided under the proviso to Section 372 of Cr.P.C. some other High Courts have taken the view that in the light of the earlier provision, namely, Section, 378(4) Cr.P.C. which continues to exist in the statute book and is un-amended, the remedy of the complainant is only to resort to the remedy under that provision.
3. Most of the cases dealt with in this judgment arise out of acquittal of accused in a private complaint filed for the offence u/s 138 of Negotiable Instruments Act. In all these cases, the complainants were issued with cheques by the accused persons allegedly due for repayment of debts due to the former. Those cheques, on presentation, bounced, mostly for insufficiency of funds and in some cases for other reasons which fall within the ambit of Section 138 of the N.I. Act. After the statutory formalities were complied with, since the debts remained un-discharged, complaints have been laid before the appropriate courts. In almost all cases herein, after trial, the. accused were acquitted and in some cases, due to the absence of the complainant, the accused were acquitted u/s 252(1) Cr.P.C. In law, it makes little difference, as far as the right to appeal is concerned, as to whether acquittal is on merits or on default.
4. Senior Advocate Shri Vijaya Bhanu, Senior Advocate Shri S. Sreekumar, Adv. Sunny Mathew, Adv. S. Rajeev, Adv. V. Philip Mathew, Adv. Kaleeswaram Raj, Adv. S.U. Nazar, Adv. V.N. Ramesan Nambisan and Additional Director General of Prosecution Shri Tom Jose Padinjarekkara were heard in the matter.
5. Two views were expressed by the learned counsel appearing for the parties. One group pointed out that the amendment, namely, Amendment Act 5 of 2009, has amended 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. is intended to benefit a specific group of persons falling within the ambit of the definition of victim. It was contended that these persons had no remedy earlier against acquittal and they had no role to play in the proceedings. It was felt that the victims were the most affected persons in a crime, and in the absence of any provision in the Cr.P.C. for them to participate in the proceedings or to agitate the matter when they feel aggrieved by the final decision, it was thought necessary that they should be provided with some remedies, and it is with that object and purpose that the amendments have been introduced. Heydon’s Rule of Interpretation was invoked in support of this contention. It was also pointed out that as far as the complainants in a private complaint are concerned, there already existed a remedy by way of appeal by Special Leave u/s 378(4) Cr.P.C. and the amendment to Section 372 Cr.P.C. and the introduction of the definition u/s
