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TMI Blog2023 (7) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... unds of appeal in Crl.A.No.30 of 2007 laid before the Sessions Court as grounds of revision. In the light of the judgment rendered by the Hon'ble Full Bench of this Court in K.Rajalingam v. Suganthalakshmi vide order dated 28.05.2020 reported in [2020 SCC Online Mad 1052] and the clarifying order by the Hon'ble Division Bench dated 16.07.2021. 3. Now, reverting back to the facts, P.S.Deivaraj filed a private complaint before the Judicial Magistrate Court No.1, Namakkal stating that R.Mani borrowed a loan of Rs. 2,00,000/ from him on 01.02.2006 with a promise to repay the said loan amount with interest at the rate of 18% within five months and gave a post-dated cheque bearing No.866295 dated 01.07.2006. When the said cheque was presented for collection, it was returned with an endorsement "funds insufficient". When R.Mani was put to notice about the return of the cheque and to pay the cheque amount within 15 days, he did not pay the money. Hence, R.Mani is to be tried for the offence under Section 138 of the Negotiable Instruments Act, 1881. 4. The Judicial Magistrate No.1, Namakkal, took cognizance of the offence and the complaint taken on his file as S.T.C.No.707 of 2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elivery 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 MANU/TN/1313/2014: 2015(1) MWN (cr)DCC 26 (Mad.) reflects correct exposition of law or the same requires to be overruled?" 7. The Hon'ble Chief Justice constituted a Bench consisting of three Judges to answer the reference, the consequence arising out of the same. The Hon'ble Full Bench of this Court in G.Ganapathy v. N.Senthilvel reported in [(2016) 4 CTC 119] held that the appeal by the victim in a private complaint against the order of acquittal dismissed by the Judicial Magistrate Court ought to be filed before the Sessions Court under proviso to Section 372 of Cr.P.C and not before the High Court under Section 378 (4) of Cr.P.C. 8. The Hon'ble Full Bench answered the reference as below:- (1)A victim of the crime, who has prosecuted an accused by way of a private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority in Damodar S.Prabhu case and no longer a good law by virtue of the judgment of the Hon'ble Supreme Court in Mallikarjun Kodagali (d) through legal representatives v. State of Kanataka [(2019) 2 SCC 752]. 12. The Hon'ble Full Bench issued the following directions in paragraph No.28 of its judgment, which reads as below:- "28.Accordingly, we answer the reference as under. 1. As against an order of acquittal passed by a Magistrate on a complaint, an appeal will lie only before the High Court, under Section 378 (4) of Cr.PC. In such cases, the complainant has to seek for Special leave under Section 378 (5) of Cr.PC. The first question in the order of reference is answered accordingly. 2. By virtue of the answer given to the first question, the questions 2 to 6 raised in the order of reference becomes more academic and therefore, there is no need to undertake the exercise of answering those questions. 3. The decision rendered in S.Ganapathi case is declared as a judgement per-incuriam, since it has been decided without reference to the binding authority in Damodar S.Prabhu and Subash Chand. That apart it is no longer a good law by virtue of the judgement of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal Appeal. (e) In cases, where the Sessions Court has reversed the order of acquittal passed by the Magistrate and convicted the accused and this order has not become final or the same has not been acted upon, the accused person has to necessarily challenge the said order by filing a criminal revision petition before this Court by quoting this Full Bench judgement. After notice is served on the complainant and he enters appearance, the same should be treated as an Appeal pending before this Court against the order of Acquittal passed by the Magistrate, by disregarding the order passed by the Sessions Court. In all those cases, the complainant must file a transpose petition and the Registry must convert the revision as Criminal Appeal by showing the complainant as the Appellant and the accused as the respondent. The Memorandum of grounds of Criminal Appeal filed before the Sessions Court will be considered as the memorandum of grounds of appeal in the renumbered Criminal Appeal. (f) In all those cases, where, either after remand or by means of filing, an Appeal has been finally decided by the Sessions Court and the same has not been challenged or it has been acted upon, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of conviction by the Sessions Court, reversing the order acquittal by the trial Court, this Court went through the background legal history of the application and found the above facts which has been culled out for easy reference. The reading of the direction found in paragraph No.28(3)(d) gives an impression that, (a) the order passed by the Sessions Court convicting the accused by reversing the order of acquittal passed by the Magistrate has to be disregarded. (b)The complainant must file a transpose petition. (c)The Registry must convert the same as Criminal Appeal by showing the complainant as the appellant and the accused as the respondent. (d)The Memorandum of grounds of Criminal Appeal filed before the Sessions Court will be considered as the Memorandum of grounds of appeal in the renumbered Criminal Appeal. 17. In the case in hand, pursuant to the direction passed by the Hon'ble Full Bench of this Court in S.Ganapathi case, the Sessions Court as the Court of appeal decided the appeal filed by the complainant/victim under Section 372 of Cr.P.C, the decision by the Sessions Court is dated 04.11.2017. Against the said judgment of conviction reversing the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disregarded or brushed aside. When the Code does not confer such power, the order of the Principal Sessions Judge, Namakkal in Crl.A.No.30 of 2017, dated 04.11.2019 based on the jurisdiction conferred on him and clarified by the Hon'ble Full Bench of this Court which was law binding on him cannot be disregarded for the reason, the subsequent Full Bench had declared the earlier judgment as per-incuriam. The decision taken by the competent Court based on the law prevailing at the time of taking decision should always be protected and if at all any interference is required, it can be only by the higher Court exercising its supervisory power conferred under the Constitution or the appellate power or revisional power or the inherent power conferred under the Code by testing the reasoning in the judgment. At no circumstances, the lower Courts order, which had been vested with jurisdiction on the date of its decision, can be disregarded by the higher Court. 21. In sofar as, the term 'transpose', in common parlance, means "change the place". The said procedure of transposing the position is common in civil proceedings where a plaintiff or a defendant may change his position w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to treat the criminal revision petition as appeal is obvious. It is needless to explain in detail. It will provide a larger canvas for the aggrieved to paint his grounds. By converting the revision petition filed by the aggrieved accused as criminal appeal, it will satisfy his requirements without much ado. The memorandum of grounds of revision filed by the accused if treated as grounds of appeal with liberty to the accused to file additional grounds if necessary, the right of the respondent/accused gets protected. 25. In view of this Court, even a formal conversion not required, the inherent power conferred to the High Court under Section 482 Cr.P.C and supervisory power of the High Court conferred under Article 227 of the Constitution if exercised, in the case of this nature, the complex and time consuming procedure can be easily avoided. To buttress the view, it is profitable to refer a batch judgment of the Hon'ble Supreme Court in Nawab Shaqafathali Khan and others v. Nawab Imdad Jah Bahardur and others reported in [(2009)5 SCC 162], wherein at paragraph No.48, the Hon'ble Supreme Court has held:- "48.if the High Court had the jurisdiction to entertain either an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th. There cannot be no second opinion on this principle. However, the appeal, which was already heard by the Sessions Court, pursuant to the earlier Bench judgment and prior to the declaration of law by the subsequent Full Bench can by no means be disregarded or ignored as non est in law. The judgment duly rendered cannot be said as non est in law, unless it suffers incurable defect or irregularities mentioned under the Code of Criminal Procedure. 30. It is also imminent to record at this juncture, that the order of the Hon'ble Supreme Court in Vikram Mankal and others v. S.Srinivasan, Spl.L.P.(Crl.)No.11021 of 2019 dated 09.11.2021, the Special Leave Petition preferred against the order of this Court dismissing the revision petition preferred by the accused by confirming the judgment of the conviction passed by the Sessions Court in the appeal by reversing the order of acquittal passed by the trial Court. In this case, the Hon'ble Supreme Court, after referring both the Full Bench judgments of this Court viz., In Re S.Ganapathy and In Re K.Rajalingam, on consent of the parties, the order of the Sessions Judge passed in the appeal preferred by the complainant and the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely. 36. To disprove the case of the complainant, the accused got himself examined as DW-1 and marked his reply, copy of the representation to the Chief Minister Cell, Police officials and Human Rights Commission, acknowledgements received for the addressee of the Chief Minister Cell, Police officials and the Human Rights Commission, complaint to the bank officials with acknowledgement card were marked as Exs.D1 to D5. 37. Finding of the trial Court:- The trial Court after considering the evidence placed before it by the complainant and the evidence placed by the accused, dismissed the complaint recording the admission of the complainant that he is not able to recollect the income tax he paid. He has not disclosed the loan of Rs. 2,00,000/- advanced to the accused in his Income Tax Return and his admission that he has obtained promissory note while advancing the loan but not produced. The trial Court dismissed the complaint précised for the complainant failure to establish the foundational fact of passing of consideration and issuance of cheque for discharge of the legally enforcible debt. 38. Grounds raised in the appeal by the complainant before the Sessions Court:- I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is reply notice, he had denied his signature in the cheque. To substantiated his defence, the accused had marked the copies of the complaint sent soonafter the alleged forcible extortion of signed blank cheques. 42. Heard the learned counsel appearing for the accused and the learned counsel appearing for the complainant and perused the records. 43. The complainant P.S. Deivaraj in his cross examination had admitted that, he is a financier and also doing real estate business. He is an income tax assessee and he pay tax disclosing his income. However, he is not able to recollect his annual income and tax paid. He is not sure whether he had disclosed the loan transaction of Rs. 2,00,000/- with the accused. He admits that as a financier he used to advance money after getting pro-note. According to his testimony, the transaction with the accused is concerned, the accused borrowed money on promise to repay the loan amount with 18% interest within 5 months, but had paid interest only for two months and stopped paying the interest. He admits that he has not stated in his complaint or his statutory notice about execution of pro-note or promise to repay the money with interest. 44. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'Yogalakshmi' finance. He also failed to produce document to show that those two finance companies have any connection with the complainant. 50. The complaint purport to have been given to the police, Chief Minister Cell, Human Rights Commission are all dated 25.07.2006 or thereafter. However, the acknowledgement card indicates that they were delivered to the addressee long thereafter, the postal seal on the acknowledgement card also indicates that they were not posted on the date of the complaint. In his complaints to the authorities, the accused had alleged, he was forcibly taken from his house by the police and the financiers. Six Indian Overseas Bank Cheques signed in blank were obtained from him by force. He had not mentioned the cheque numbers in these complaint. These complaints dated 25.07.2006 apparently lodged after presentation of the cheque on 01.07.2007. Therefore, it is very obvious from the defence exhibits that the cheque marked as Ex.P1 ought to have been with the complainant on or before 01.07.2006. The complainant averment that it was a post dated cheque given to him on 01.02.2007 when the accused borrowed Rs. 2 lakhs from him, thus, gets probabilised. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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