Back
IN THE HIGH COURT OF MADRAS (MADURAI BENCH)
V. Ramasubramanian, N. Kirubakaran, S. Vaidyanathan, JJ.
S. Ganapathy - Appellant
Vs.
N. Senthilvel - Respondent
Crl. A. (MD) Nos. 347 of 2010, 348 of 2011, 18 of 2012, 336 and 337 of 2013, 64, 196, 284 and 302 of 2014, 21, 46, 55, 57, 58, 60, 99, 100, 101, 115, 143, 241 and 297 of 2015, Crl.R.C. (MD) Nos. 382 of 2012 and 315 of 2015, MP (MD) No. 1 of 2015 in Crl. OP (MD) SR. No. 54 of 2015 in Crl. A (MD) SR. 21127 of 2014, MP (MD) No. 1 of 2014 in Crl. A (MD) SR. No. 3609 of 2014, M.P. (MD) No. 1 of 2015 in Crl. OP (MD) SR. No. 5475 of 2015 in Crl. A (MD)[SR] No. 41188 of 2014, MP (MD) No. 1 of 2014 in Crl. A. (MD) No. SR 6289 of 2014, MP (MD) No. 1 of 2014 in Crl. A (MD) No. SR 6836 of 2014, MP (MD) No. 1 of 2015 in Crl. OP (MD) SR. No. 6999 of 2015, MP (MD) No. 1 of 2014 in Cr.A. (MD) SR. No. 9195 of 2014, MP (MD) No. 1 of 2015 in Crl. OP (MD) SR 11154 of 2015, MP (MD) No. 1 of 2015 in Crl. OP (MD) No. SR 13013 of 2015 in Crl. A (MD) SR. No. 13012 of 2015, MP (MD) No. 1 of 2015 in Crl. OP (MD) SR. No. 15264 of 2015, MP (MD) No. 1 of 2015 in Crl. OP (MD) SR. No. 20277 of 2015 in Crl. A (MD) SR. No. 20089 of 2015, MP (MD) No. 1 of 2012 in Crl. A. (MD) No. SR 21757 of 2012, MP (MD) No. 1 of 2015 in Crl. A. (MD) SR. No. 22547 of 2014, MP (MD) No. 1 of 2013 in Crl. A (MD) SR. No. 35519 of 2013, MP (MD) No. 2 of 2015 in Crl.RC(MD) SR. No. 35959 of 2014, MP (MD) No. 1of 2013 in Crl. A (MD) SR. No. 40383 of 2013, MP (MD) No. 1 of 2014 in Crl. A. (MD) SR. No. 41392 of 2013, Crl. OP (MD) No. 10762 of 2015 in Crl. A (MD) No. SR 11019 of 2015, Crl. OP (MD) No. 18479 of 2014 in Crl. A (MD) [SR] No. 23860 of 2014, Crl. OP (MD) No. 18868 of 2014 in Crl. A (MD)[SR] No. 23866 of 2014, Crl. OP (MD) No. 18872 of 2014 in Crl. A (MD)[SR] No. 23862 of 2014, Crl. OP (MD) No. 6646 of 2015 in Crl. A (MD) [SR] No. 11098 of 2015, Crl. O.P. (MD) No. 3501 of 2015 in Crl. A (MD)[SR] No. 39639 of 2014, Crl. OP (MD) No. 6835 of 2015 in Crl. A (MD) [SR] No. 38577 of 2014, Crl. OP (MD) No. 18584 of 2014 in Crl. A (MD) [SR] No. 23864 of 2014, Crl. OP (MD) No. 7678 of 2015 in Crl. A (MD)[SR] No. 22091 of 2014, Crl. OP (MD) No. 7273 of 2015 in Crl. A (MD)[SR] 38477 of 2014, Crl. OP (MD) No. 7274 of 2015 in Crl. A (MD)[SR] No. 37980 of 2014, Crl. OP (MD) No. 7605 of 2015 in Crl. A (MD)[SR] No. 12833 of 2015, Crl. OP (MD) No. 7620 of 2015 in Crl. A (MD)[SR] No. 13252 of 2015, Crl. OP (MD) No. 7648 of 2015 in Crl. A (MD)[SR] No. 11108 of 2015, Crl. OP (MD) No. 7649 of 2015 in Crl. A (MD)[SR] No. 11110 of 2015, Crl. O.P. (MD) No. 7650 of 2015 in Crl. A. (MD)[SR] No. 11112 of 2015, Crl. OP (MD) No. 7651 of 2015 in Crl. A (MD)[SR] No. 11114 of 2015, Crl. OP (MD) No. 7652 of 2015 in Crl. A (MD)[SR] No. 11116 of 2015, Crl. OP (MD) No. 7653 of 2015 in Crl. A (MD)[SR] No. 11118 of 2015, Crl. OP (MD) 7654 of 2015 in Crl. A (MD)[SR] No. 11120 of 2015, Crl. O.P. (MD) No. 7655 of 2015 in Crl. A (MD)[SR] No. 11122 of 2015, Crl. OP (MD) No. 7656 of 2015 in Crl. A. (MD)[SR] No. 11124 of 2015, Crl. OP (MD) No. 7675 of 2015 in CRl.A (MD)[SR] No. 21504 of 2015, Crl. OP (MD) No. 7747 of 2015 in Crl. A (MD)[SR] No. 12073 of 2015, Crl. OP (MD) No. 7960 of 2015 in Crl. A. (MD)[SR] No. 5638 of 2015, Crl. OP (MD) No. 9791 of 2015 in Crl. A (MD) SR 16347 of 2015, Crl. OP (MD) No. 10567 of 2015 in Crl. A (MD) SR 18058 of 2015, Crl. OP (MD) No. 10661 of 2015 in Crl. A (MD) SR No. 16581of 2015, Crl. OP (MD) No. 10662 of 2015 in Crl. A (MD) SR. No. 16589 of 2015, Crl. OP[M] No. 12179 of 2015 in Crl. A (MD) SR. No. 16369 of 2015, Crl. O.P. (MD) No. 13994 of 2015 in Crl. A. (MD) SR. No. 23622 of 2014, Crl. O.P. (MD) No. 13995 of 2015 in Crl. A. (MD) SR. No. 18387 of 2015, Crl. O.P. (MD) No. 8002 of 2015 in Crl. A. (MD) SR. No. 30097 of 2014, Crl. O.P. (MD) No. 8175 of 2015 in Crl. A. (MD) SR. No. 38175 of 2014, Crl. OP (MD) No. 8851 of 2015 in Crl. A. (MD) SR. No. 23420 of 2014, Crl. OP (MD) No. 12747 of 2015 in Crl. A. (MD) SR. No. 21542 of 2014, Crl. OP (MD) No. 10734 of 2014 in Crl. A. (MD) SR. No. 18221 of 2014, Crl. O.P. (MD) No. 19499 of 2012 in Crl. A. (MD) SR. No. 34433 of 2012, Crl. O.P. (MD) No. 13436 of 2015 in Crl. A. (MD) SR. No. 22650 of 2015, Crl. O.P. (MD) No. 13675 of 2015 in Crl. A. (MD) SR. No. 18385 of 2015, Crl. O.P. (MD) No. 13676 of 2015 in Crl. A. (MD) SR. No. 10351 of 2011, Crl. O.P. (MD) No. 20373 of 2015 in Crl. A. (MD) SR. No. 33802 of 2015, Crl. O.P. (MD) No. 20384 of 2015 in Crl. A. (MD) SR. No. 29553 of 2015, Crl. O.P. (MD) No. 20522 of 2015 in Crl. A. (MD) SR. No. 29539 of 2015, Crl. O.P. (MD) No. 20986 of 2015 in Crl. A. (MD) SR. No. 14041 of 2015 and Crl. OP (MD) No. 15906 of 2011
Decided On : 05-04-2016
Negotiable Instruments Act, 1881 - Section 138 - Criminal Procedure Code,1973 - Sections 378(4) and 372 - Dishonored cheque - Seek leave - Whether a Victim of a crime who has prosecuted an accused by way of a private complaint does not have statutory right of appeal against acquittal –counsel for the appellant produced a copy of judgment of Supreme Court in 642 to contend that the complaint was not based upon a dishonored cheque drawn in respect of a debt or a liability payable under contract and hence not legally enforceable and such a claim was prohibited under law - Perhaps Registry convinced of such a representation, numbered the appeal and it was directed to be posed along with Criminal Appeal by a learned Single Judge having the roster - When these three matters were grouped and posed before the learned Judge - Held, In other words both victim and State/prosecution can file appeals independently without being dependent on the exercise of the right by the other -Moreover from the act or omission for which the accused has been charged, there may be more than one victim and the loss suffered by the victims may vary from one victim to the other victims - Therefore each of such victims will have separate right of appeal and in such appeals grievance of each of the appellant may be different. For instance, in an act of arson when a joint property of different persons has been set on fire loss suffered by each of the co-sharers may be different - In such a case each co-sharer has a separate right of appeal and such right of one does not depend even on filing of such appeal by another victim – Order accordingly
V. Ramasubramanian, J.
1. Crl. A. (MD). No. 99 of 2015 was directed against the judgment of the learned Judicial Magistrate No. 1, Tirunelveli in C.C. No. 337 of 2013 dated 17.6.2014, in and by which, the respondent in the appeal was acquitted on finding that the respondent/accused was not guilty of an offence under Section 138 of the Negotiable Instruments Act, 1881.
2. The appellant in the present appeal was the complainant before the Lower Court. As against the acquittal, he filed the present appeal under Section 378 of Cr.P.C. The papers in the appeal were presented before this Court on 20.10.2014. The Registry raised an objection as to how the appeal was maintainable, as it was filed beyond 60 days as laid down under Section 378(5) of Cr.P.C.
3. The counsel for the appellant produced a copy of the judgment of the Supreme Court in A.V. Murthy Vs. B.S. Nagabasavanna, 2002 (2) SCC 642 to contend that the complaint was not based upon a dishonoured cheque drawn in respect of a debt or a liability payable under contract and hence, not legally enforceable and such a claim was prohibited under law. Perhaps the Registry, convinced of such a representation, numbered the appeal and it was directed to be posed along with Criminal Appeal (MD) Nos. 100 and 101 of 2015 by a learned Single Judge having the roster. When these three matters were grouped and posed before the learned Judge (Nagamuthu, J.) on 20.4.2015, he passed the following order:-
"Considering the complicated question of law involved in these matters, the Registry is directed to issue notice to all the recognized Bar Association of Madurai Bench to make their submissions on the following issue:
In the private complaint cases, for the victims, whether the right of appeal as provided in proviso to Section 372 of the Code of Criminal Procedure is available or the only option for them is to seek leave under Section 378(4) Cr.P.C.?"
4. On 27.4.2015, several other appeals as well as unnumbered appeals were also tagged together and came to be posed before him. Altogether, there were 10 criminal appeals and 27 unnumbered criminal appeals, in which, criminal original petitions alone were numbered, were before him. On that day, the learned Judge, after hearing counsels for parties, framed several questions and directed the matters to be placed before the learned Chief Justice with a request to constitute a Full Bench to go into the matter. The questions framed by him were as under:
"1. Whether a victim of a crime, who has prosecuted an accused by way of a private complaint, does not have statutory right of appeal against acquittal under proviso to Section 372 of the Code of Criminal Procedure?
2. Whether a complainant, in a private compliant case, who is not a victim, has got the remedy to seek only leave to file appeal under Section 378(4) of the Code of Criminal Procedure in the event of acquittal of the accused?
3. In a private complaint case, if a victim does not happen to be a complainant and in the event of acquittal, whether he has got right of appeal under proviso to Section 372 of the Code of Criminal Procedure or he has to seek leave to file appeal under Section 378(4) of the Code of Criminal Procedure?
4. Whether a victim in a case instituted on a police report, has a better place in the criminal justice delivery system than a victim in a private complaint case?
5. Whether the term 'victim' as defined in Section 2(wa) of the Code of Criminal Procedure excludes a complainant in a private complaint case, though he has suffered loss or injury on account of the offence committed against him? and
6. Whether the view held in the judgment of this Court in Selvaraj Vs. Venkatachalapathy, reported in 2015 (1) MWN (Cr) DCC 26 (Mad.), reflects correct exposition of law or the same requires to be overruled?"
5. The aforesaid referral order is since reported in S. Ganapathy Vs. N. Senthilvel, 2015 (1) L.W. (Crl.) 553. The learned Judge surveyed several decisions of the other High Courts
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
