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TMI Blog2017 (2) TMI 1288X X X X Extracts X X X X X X X X Extracts X X X X ..... ther things, observed that 'on the side of the Petitioner/Appellant/Complainant no process fee was paid and also when the Petitioner/Complainant was called before Court, there was no representation on his side and further that he had not appeared and since an Advocate had not appeared on behalf of the Petitioner/Complainant, a Non Bailable Warrant was issued against the Respondent/Accused. Furthermore, the NBW was pending from 27.07.2015 till date and no steps were taken on behalf of the Petitioner/Appellant/Complainant to produce the Respondent/ Accused and in spite of sufficient time being granted to the Petitioner/Complainant, no steps were taken to produce the Respondent/Accused and also, no further steps were taken to conduct the case. Furthermore, on 30.12.2015, the Petitioner/ Appellant/Complainant had not appeared continuously and there was no representation on his behalf. No steps were taken on the side of the Petitioner/Complainant to produce the Respondent/ Accused before this Court, hence, in the interest of Justice and also in the interest of Court, the present case is dismissed'. Contentions of the Petitioner/Complainant: 5.According to the Learned Counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se in C.C.No.77 of 2007 and also that, no process fee was paid in regard to the execution of NBW. Birds Eye View of Negotiable Instruments Act: 11.It is to be noted that a case under Section 138 of the Negotiable Instruments Act, 1881 is in civil nature, but by introducing Section 138, a criminal colour is given. However, the intention of the legislature is to see that the concerned is made to pay the amount to the Payee. Indeed, the Complainant's interest lies primordial in recovering the money given rather than sending the Drawer of the Cheque to Jail. After all, the 'threat of Jail' is only a method for effecting a recovery. 12.No wonder, in respect of an offence under Section 138 of the Negotiable Instruments Act, so far as the Complainant is concerned, the punishment like that of other forms of crimes is not a method of seeking retribution, but it is only a mere for ensuring the Debt/Money So Lent/Advanced. 13.It cannot be ignored that an offence under Section 138 of the Negotiable Instruments Act does not involve a moral turpitude, as opined by this Court. 14.In respect of a traditional crime/offence a third party can be the Complainant, but in Section 138 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der in Due Course' in terms of Section 8 of the Act. Further, only a 'Payee' or 'Holder in Due Course' could be the Complainant when a Cheque was dishonoured. When a Complainant is not a 'Holder in Due Course', he cannot maintain a complaint. 21.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. Features of Cr.P.C.: 22.The word 'Complainant' is not defined under Cr.P.C., but it will mean an individual who is examined under Section 200 Cr.P.C. Also, the term 'offence' under Section 2(n) includes not only the doing of possible act, but by omitting to do something as well. Section 4(2) Cr.P.C. specifies that all offences under any other law other than I.P.C. shall be enquired into or tried and otherwise deal with the provisions of the Court, subject to any other enactment which contemplates a different mode of trial for such offences. In fact, the non-obstante clause in Section 142 of the Negotiable Instruments Act speaks of three matters mentioned in Section, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainst acquittal lies before an Appellate Court by means of amendment to Section 372 Cr.P.C. 27.In this connection, this Court significantly points out that a 'Victim', who is not a Complainant in a private complaint case, is not entitled to prefer an Appeal against an acquittal under proviso to Section 372 Cr.P.C. and his right of Appeal is governed by un-amended provisions of Cr.P.C. read with Section 378(4) Cr.P.C., as per decision in Tata Steels Limited (M/s.) V. M/s.Atima Tube Products Limited, 2013(3) Crimes 613 (P&H) (DB). 28.Further, in the decision Top Notch Infotronix (I) Pvt. Ltd. V. Infosoft Systems, 2012(1) Bom (Cri) 805, it is observed that 'an appeal against acquittal lies before the High Court'. Moreover, in the decision of the Hon'ble Supreme Court in Subhash Chand V. State (Delhi Admn.) reported in AIR 2013 SC 395, it is held that 'A Complainant can file an application for Special Leave to Appeal against an order of acquittal of any kind only to the High Court etc.' 29.The words occurring in Section 378(4) Cr.P.C. 'any case instituted upon complaint' mean only those cases where not only the Complainant comes to Court with a pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... half, seeking special leave to file an appeal from the order of acquittal, and upon grant of such special leave, the complainant may present such an appeal to the High Court, and it is apparently clear that this provision of Section 378, sub section (4) of the Code is the exclusive provision which deals with the orders of acquittal passed in any cases instituted upon complaint. Hence, the present provision of Section 378, sub section (4) of the Code and amended proviso to Section 372 of the Code operate in two different areas, separately. 23. Having the comprehensive view of the matter, and considering the above referred provisions of the Code and also considering rival submissions advanced by the learned Counsel for the parties, anxiously, and further considering the aforesaid judicial pronouncements and observations made therein, and more particularly considering the aims and objects of the legislature in introducing the proviso to Section 372 of the Code, by way of amendment of 2009, I am of the view that insertion of the said proviso to Section 372 of the Code, was focussed with the view to ensure that if the State does not prefer appeal against the order of acquittal, or if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich reads as under: 372. No appeal to lie unless otherwise provided.- No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force: Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. "2.Definitions.- In this Code, unless the context otherwise requires.- (a) to (w) ...... (wa) victim means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression victim includes his or her guardian or legal heir. "378.Appeal in case of acquittal.-(1) to (3).... (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that no form is prescribed which the complaint must taken. It may only be said that there must be an allegation which prima facie discloses the commission of an offence with the necessary facts fro the Magistrate to take action." 37.It is to be pointed out that in the decision Bhisam Prasad Bareth V. Dinesh Mahant and others, 2012 CRI.L.J. 2157 at special page 2159, at paragraphs 10 and 12, it is observed as under: "10.In the matter of Hirlal Nansa Bhavsar v. The State of Gujara, reported in 1976 Cri LJ 84 the Full Bench of the Gujarat High Court while answering a reference made to it has held thus: "The right of appeal is a substantive right which crystallizes at the date of institution of action and this right includes right to go in appeal to the superior Court. The forum to file the appeal is also thus determined as soon as the action is instituted. Till the case is instituted no litigant has any right to the forum in which the case can be instituted. In a criminal case this right to appeal and the right to file the appeal in the forum prescribed by law would precipitate at the date when the Court takes cognizance of an offence against the accused. It is perfectly compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entions and evidence on record. The High Court in a very mechanical way has stated that after a perusal of the evidence on record it found no reason to interfere with the decision of the trial court as the prosecution has failed to establish the charges levelled against the accused beyond reasonable doubt and it has dismissed the appeal by passing a cryptic order. This Court is of the view that the High Court, being the Appellate Court, has to exercise its appellate jurisdiction keeping in view the serious nature of the charges levelled against the accused. The High Court has failed to exercise its appellate jurisdiction properly in the appeal filed by the appellant against the judgment and order of acquittal passed by the trial court. 15.Hence, the impugned judgment and order of the High Court is not sustainable in law and the same is liable to be set aside by this Court and the case is required to be remanded to the High Court to consider for grant of leave to file an appeal by the appellant as required under sub-Section (3) to Section 378 of Cr.P.C. and thereafter proceed in the matter. 39.In the decision K.Damodaran V. V.K.Sippi, AIR 1960 Kerala 389 (V 47 C 179), it is obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o insist that the rule be observed. In the Abstract General words like all others, receive their full and natural meaning and the Courts will not impose on them limitations not called for by the sentence or objects of the enactment, as per decision Roe V. Hemmings, (1951) 1 K.B. 676. Some Case Laws on Interpretation of Statute: 44.Coming to the aspect of interpretation, this Court refers to the decision of the Hon'ble Supreme Court in Reserve Bank of India V. Peerless General Finance and Investment Co. Ltd., and others, AIR 1987 SC 1023 wherein it is observed as under: "33.Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives the colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when the object and purpose of its enactment is known. With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context of its enactment, with the glasse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... low upon the intended interpretation." 48.In the decision of the Hon'ble Supreme Court in Union of India V. Elohinstone Spinning and Weaving Co. Ltd., and others, AIR 2001 SC 724, the Hon'ble Supreme Court has observed as follows: "The duty of Judges is to expound and not to legislate is a fundamental rule. There is no doubt a marginal area in which the Courts mould or creatively interpret legislation and they are thus finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further proceeding (See: Corocraft Ltd. V. Pan American Airways Inc. 1968 (3) WLR 714; State of Haryana v. Sampuran Singh, 1975 (20 SCC 810: AIR 1975 Sc 1952). But by no stretch of imagination a Judge is entitled to add something more than what is there in the Statute by way of a supposed intention of the legislature. It is, therefore, a cardinal principle of construction of statute that the true or legal meaning of an enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed." Inapplicability of Section 372 Cr.P.C.: 49.In the present case, the impugned Judgment was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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