TMI Blog2017 (2) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... is essentially a wrong against the Society and the State. As such, any compromise between the Complainant and an Accused ought not to absolve the Accused from Criminal responsibility, if the offences are of private nature and not serious ones. It can be compounded, if it is punishable offences and in respect of others compoundable can be effected with the permission of the Court. Maintainability of Complaint - Held that: - In a Complaint under Section 138 of the Negotiable Instruments Act, the Complainant is having a very vital stake in the matter. Therefore, the Complaint ought not to be dismissed in a mechanical, routine or in a cavalier fashion. This Court is of the considered view that the order of dismissing the complaint in C.C.No.77 of 2007 passed by the trial Court on 30.12.2015 needs to be examined by this Court in a threadbare fashion with a view to find out whether there are prima facie sufficiency of cause/materials on the side of the Petitioner/Complainant. Matter on remand. - Crl.O.P.No. 24235 of 2016, Crl.A.Sr.No. 20030 of 2016 - - - Dated:- 23-2-2017 - M. Venugopal, J. For the Appellant : Mr. M. Balasubramanian For the Respondent : No appearan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent/Accused evaded service and a Bailable Warrant was issued and on 16.12.2013, the Respondent/Accused surrendered before the Court on 17.12.2013 and on being questioned, he denied the allegation and the case was adjourned for trial with a view to examine the witnesses concerned. Finally, on 30.06.2014 there was no representation on the side of the Respondent/Accused and that the trial Court was perforced to issue a Bailable Warrant against him. 7.The Learned Counsel for the Petitioner/Complainant submits that the Respondent/Accused again surrendered on 02.07.2014 before the Court and later on 04.09.2015, the Petitioner/ Complainant was present and was ready and on that day, the proof affidavit was filed and on the side of the Respondent/Accused, there was no representation and consequently, a Non Bailable Warrant was issued against the Respondent/Accused. 8.The Learned Counsel for the Petitioner/Appellant/ Complainant submits that in the present case, the original cheque was missing from the Court records and only for this prime reason the hearing of the main case in C.C.No.77 of 2007 was adjourned from time to time. 9.The emphatic stand of the Petitioner is that on 0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me is not couched in precise language, in the considered opinion of this Court. The words 'another person' in Section 138 include both 'Payee' and 'Holder in Due Course', but not a mere 'Holder' or 'Endorsee' without consideration. Under Section 9 of the Negotiable Instruments Act, a 'Holder in Due Course' is an individual, who for consideration, is entitled to the possession of a Bearer Cheque or 'Payee' or 'Endorsee' thereof. 16.In reality, the word employed in Section 138 of the Negotiable Instruments Act viz., 'Drawn' 'Discharge of any Debt' or other Liability are conveying the legislature's message through which a Court of Law can very well appreciate the intention of legislature in the subject matter in issue. 17.It cannot be gainsaid that 'affixing signature' on blank Cheque cannot be said to be equivalent to the word 'Drawn' used in Section 138 of the Negotiable Instruments Act. Viewed in that perspective, the word 'Drawn' is to be understood as 'Execution of Cheque' as per decision G.Gopan V. Tonny Verghese reported in 2008 BC (III) 488 at page 499 : 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to equity, good conscience, fair play and Justice. 23.A cursory perusal of the term 'Complaint' as per Section 2(d) Cr.P.C. points out that it refers to mean any allegation made orally or in writing to a Magistrate. Undoubtedly, there is no express provision in Criminal Procedure Code or in the rules framed thereunder, however, complaint is to be drafted. Ordinarily, a Complainant need not to be an aggrieved person. An individual having knowledge of offence can file a complaint as per decision Gujral V. Emperor, AIR 1935 All 938. If a case is registered in terms of Section 154 Cr.P.C., the 'State' will be the Prosecutor, the person whose information had led to the lodging of report is the 'Informant'. Right of Appeal: 24.It is to be pointed out that 'Right of Appeal' is a substantive right and not a just matter of procedure, as opined by this Court. There is no inherent right of preferring an 'Appeal' is expressly provided for by the Law itself, as per decision of the Hon'ble Supreme Court in Durga Shanker Metha V. Raghuraj Singh, AIR 1954 SC 520 at page 522. No wonder, if the words of the statute are explicit, precise (admits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... litigant can question an acquittal by way of Appeal to High Court, after obtaining Special Leave to Appeal as per decision N.G.Taya Wade (1958) 60 Bom. LR 1339. Section 378(4) Cr.P.C. applies to cases preferred on complaints in respect of I.P.C. offences as it does to complaints invoking any other offence under any special enactment. 31.When there is a miscarriage of Justice, a 'Leave' can be granted in respect of filing of an Appeal against the Order/Judgment of acquittal, as the case may be. Section 378 Cr.P.C. provides for preferring of Appeals in case of acquittal orders passed by the Subordinate Courts. By means of amendment provision in the year 1978, in case of acquittal order passed by the Court of Sessions in Revision, an Appeal can be filed. Added further, by virtue of Amendment Act, 2005, an Appeal against an order of acquittal passed by a Learned Judicial Magistrate in respect of a cognizable or non-bailable offence filed on a police report can be filed before the Court of Session and the District Magistrate/District Collector is empowered to direct the Public Prosecutor to prefer such Appeals. 32.As a matter of fact, sub-section (4) of Section 378 Cr.P.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which impliedly infers that there is no application of said amended proviso to Section 372 of the Code to the cases instituted upon complaint as contemplated by sub-section (4) of Section 378 of the Code, and more particularly, to the applications seeking leave to file appeals challenging the judgments and orders of acquittals for the offence punishable under Section 138 of the NI Act and same do not come under the ambit and purview of the said amended proviso to Section 372 of the Code. 24. Accordingly, the arguments advanced by the learned counsel for the respondents-accused, are not acceptable on the touchstone of the above enunciated legal position, and therefore, I am not inclined to accept the same, and hence, the question for determination in respect of maintainability of the present applications before this Court is answered in the affirmative, and resultantly, present applications under Section 378(4) of the Code, seeking leave to file appeals challenging the respective judgments and orders of acquittals for the offence punishable under Section 138 of the Negotiable Instruments Act, are maintainable before this Court, since there is no application of the amended pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 372 of Code of Criminal Procedure the word used is victim and in Section 378(4) of Code of Criminal Procedure the word used is complainant and this Section applies to complaint case. 35.Also, this Court worth recalls and recollects the decision of the Hon'ble Supreme Court (Three Judge Bench), Damodar S.Prabhu V. Sayed Babala H. reported in AIR 2010 Supreme Court 1907 wherein at paragraph 14, it is laid down as follows: 14. It may be noted here that Section 143 of the Act makes an offence under Section 138 triable by a Judicial Magistrate First Class (JMFC). After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal. In the case of conviction, an appeal would lie to the Court of Sessions under Section 374(3)(a) of the CrPC; thereafter a Revision to the High Court under Section 397/401 of the CrPC and finally a petition before the Supreme Court, seeking special leave to appeal under 136 of the Constitution of India. Thus, in case of conviction there will be four levels of litigation. In the case of acquittal by the JMFC, the complainant could appeal to the High Court under Section 378(4) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such an intention by necessary intendment. It is also competent to the legislature to save pending proceedings from operation of the new Act. 12.In the present case also, the impugned judgment has been passed on 18-3-2009, whereas the proviso to Section 372 of the Cr.P.C. was inserted on 31.12.2009, that is to say, long after date of incident i.e. 5-3-2008 and therefore, the proviso to Section 372 of the Cr.P.C. may not thus be applicable in the present case. This is so also, because the right of appeal is a substantive right and not a procedural right and such right vests from the day of the commencement of the proceedings and an appeal is nothing but a continuation of the proceedings. The forum to file an appeal is also determined as soon as the action is instituted. 38.In the decision of the Hon'ble Supreme Court in Satyapal Singh V. State of M.P. and others, (2015) 4 MLJ (Crl) 219 (SC), at special page 225, wherein at paragraphs 13 to 15, it is held as under: 13.Thus, to conclude on the legal issue: whether the appellant herein, being the father of the deceased, has statutory right to prefer an appeal to the High Court against the order of acquittal under p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce upon complaint and Complaint does not include a police report. The grant of special leave under S.417(3) does not amount to a decision in the appeal that the appeal is competent. A complainant may present an appeal to the High Court under S.417(3) only if the case was instituted upon complaint, and therefore it is incumbent on the appellate Court before hearing the appeal, to decide whether it is such a case. The admission of an appeal does not preclude a party from questioning, or the Court from considering, whether it lies at all. Cannon of Construction and Interpretation of Statues: 40.In this connection, this Court significantly points out that in the decision Cartledge V. E.Jopling Sons Limited, (1963) A.C. 758, it is observed that 'Where by the use of clear and unequivocal language capable of one meaning, anything is indicated by Legislature, it must be enforced, however harsh or absurd or contrary to common sense, the result may be'. Further, in the decision Whitehead V. James Stott Limited, 1949 1 KB 358, it is held that 'words are not to be construed contrary to there meaning as embrassing or excluding cases merely because no good reason ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d appear different than when the statute is looked at without the glasses provided by the context. With these glasses the court must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act. No part of a statute and no word of a statute can be construed in isolation. Statutes have to be construed so that every word has a place and everything is in its place. 45.That apart, in the decision South Asia Industries Private Limited V. S. Saroop Singh and others, AIR 1966 SC 346, it was held that 'the object of interpreting a statute is to ascertain the intention of the Legislature enacting it'. 46.In the decision Mohammad Sher Khan V. Raja Seth Swami Daval reported in AIR 1922 Privy Council 17, it is held that 'one section a statute cannot be used to defeat another section unless it is impossible to effect a reconciliation between them'. 47.In the decision of the Hon'ble Supreme Court in British Airways Plc. V. Union of India and others, AIR 2002 SC 391, it is observed as follows: 7.While interpreting a statute the court should try to susta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .P.C. came into effect on 31.12.2009 viz., long after the date of issuance of Cheque dated 20.02.2006. In fact, the proviso to Section 372 Cr.P.C. is not retroactive in operation, as per decision of the Hon'ble Supreme Court in National Commission of Women V. State of Delhi, (2010) 12 SCC 599. Hence, the proviso to Section 372 Cr.P.C. is not applicable to the facts of the present case, in the considered opinion of this Court. Further, Section 372 Cr.P.C. does not lay down the procedure as to how, in what manner and within which time an Appeal is to be filed. 50.As a matter of fact, Section 378(4) Cr.P.C. places no restriction either expressly or impliedly on the Complainant. Even the decision [Three Judge Bench] of the Hon'ble Supreme Court reported in AIR 2010 Supreme Court 1907 (cited supra) at paragraph 14, in a crystalline fashion speaks of 'preferring of an Appeal by the Complainant in case of acquittal by JMFC before the High Court under Section 378(4) Cr.P.C. and thereafter, for Special Leave to Appeal to Supreme Court under Article 136 of the Constitution of India'. It is an axiomatic principle in Law that as per Article 141 of the Constitution of India, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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