Smt. Jayamma and Others Vs. State of Karnataka and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/935233
CourtKarnataka High Court
Decided OnJan-11-2012
Case NumberCRIMINAL REVISION PETITION NO. 1066 of 2011
JudgeV. JAGANNATHAN
AppellantSmt. Jayamma and Others
RespondentState of Karnataka and Others
Advocates:For the Petitioners: S.G. Bhagawan, Advocate. For the Respondents: R1 - Satish R. Giriji, HCGP, R2 and R3 - S.S. Srinivasa Rao, Advocate.
Excerpt:
criminal procedure code - sections -372, 397 r/w 401 - indian penal code - section 420 - prize and money circulation (banning) act - 1978 - sections 3, 4 and 5 - to set aside the order and consequently confirm the order question that is involved in this revision petition is as to the applicability of the proviso and whether the said proviso is applicable with retrospective effect brief facts which have given raise to the aforesaid question are that, the petitioners herein were put on trial in respect of the offences punishable prosecution against the petitioners were that the petitioners who were accused nos.1 to 6 before the trial court, induced several persons including the complainant to subscribe to a chit scheme which was run by them and the complainant and other persons believing the accused, contributed lakhs of rupees towards the chit fund and accused after collecting money from the complainant and other witnesses, failed to repay the money as promised and they also took loan from the complainant and other witnesses and thus, committed the act of cheating- the prosecution that accused nos.2, 3 and 6 had issued cheques in connecting with the chit fund and these cheques were issued to cws 1 to 6 without the accused having sufficient funds in the account- filing of the charge sheet and accused pleading not guilty, the trial court proceeded to record the statement of the witnesses and after the complainant respondents 2 and 3 though were cited as witnesses cws 2 and 5 were not examined and therefore, they approached this court for a direction to the trial court to examine them also and the said petition was allowed by this court and the order of the trial court was set aside and trial court was directed to proceed with the trial by examining the witnesses available- several other witnesses cited in the charge sheet including the respondents 2 and 3 herein were the victims of the chit scheme introduced by the accused and some of the victims had entered into compromise with the accused and therefore, such of the victims did not support the prosecution case and so was the complainant pw-1, but however, there are several others who had been the victims of the chit transaction and chit business run by the accused. the very fact that this court allowed the revision petition filed by respondents 2 and 3 and directed the trial court to proceed with the examination - respondents 2 and 3 were the victims and merely because, they also were examined as witnesses for the prosecution and the case ended in acquittal, respondents 2 and 3 before this court who were examined as pws 7 and 8 in the trial court were also the victims of the chit fund business run by the accused.(prayer: this crl.r.p. is filed u/s.397 r/w 401 of cr.p.c praying to set aside the order dated 01.10.2011 in crl.a.no.132/11 on the file of the p.o., ftc-xvi, bangalore city and consequently confirm the order dated 18.11.10 in c.c.no.12330/04 on the file of the i addl.cmm, bangalore.) 1. the question that is involved in this revision petition is as to the applicability of the proviso to section 372 of cr.p.c. and whether the said proviso is applicable with retrospective effect. 2. brief facts which have given raise to the aforesaid question are that, the petitioners herein were put on trial in c.c.no.12330/04 in respect of the offences punishable under sections 3, 4 and 5 of the prize and money circulation (banning) act, 1978 r/w section 420 of ipc and the case of the prosecution against the petitioners were that the petitioners who were accused nos.1 to 6 before the trial court, induced several persons including the complainant to subscribe to a chit scheme which was run by them and the complainant and other persons believing the accused, contributed lakhs of rupees towards the chit fund and accused after collecting money from the complainant and other witnesses, failed to repay the money as promised and they also took loan from the complainant and other witnesses and thus, committed the act of cheating. it was also the case of the prosecution that accused nos.2, 3 and 6 had issued cheques in connecting with the chit fund and these cheques were issued to cws 1 to 6 without the accused having sufficient funds in the account. 3. after filing of the charge sheet and accused pleading not guilty, the trial court proceeded to record the statement of the witnesses and after the complainant pw-1 dhanalakshmi and pws 2 to 4 turning hostile, the trial court thought it fit to close the case by the order dated 17.12.09. the present respondents 2 and 3 though were cited as witnesses cws 2 and 5 were not examined and therefore, they approached this court in crl.p.no.3587/10 for a direction to the trial court to examine them also and the said petition was allowed by this court and the order of the trial court was set aside and trial court was directed to proceed with the trial by examining the witnesses available. 4. pursuant thereto, cws 2 and 5 were also examined and on completion of the trial, learned trial judge acquitted the accused persons in respect of all the offences with which they were charged. it is this order of acquittal that was called in question by cws 2 and 5 i.e., the present respondents 2 and 3 before the lower appellate court in crl.a.no.132/11. learned judge of the lower appellate court allowed the said appeal and judgment of acquittal passed by the trial court was set aside and the matter was remanded to the trial court with the following directions:- (i) the learned trial judge should issue summons of nbws to all the victims of the crime in this case who are not examined in this case by giving sufficient opportunity to the prosecution to examine those witnesses. (ii) the trial court shall issue summons or nbws to all the witnesses who are not examined in this case and secure their presence and dispose of the matter in accordance with law. (iii) the trial court is directed to secure all the original cheques and other documents, which have been seized in this case from the investigating officer and mark all the documents in this case and proceed with the matter. (iv) the trial court is directed to issue summons or nbws to all the investigating officers, secure their presence and dispose of the matter in accordance with law. it is this order of remand that is now called in question by the accused in this revision petition. 5. sri.s.g.bhagawan, learned counsel for the petitioners urged one and the only ground for setting aside the order of remand passed by the lower appellate court and the said ground is that, the lower appellate court could not have entertained the appeal filed by cws 2 and 5 as the proviso to section 372 of cr.p.c. was brought into force with effect from 31.12.2009, whereas the incident in question pertains to the year 2003. 6. in this connection, learned counsel also placed reliance on the apex court’s decisions reported in 2011 air scw 61 and (2009) 8 scc 646. referring to the observations made by the apex court in para-5 of the decision reported in 2011 air scw 61, it is submitted that the proviso may not be applicable as it came in the year 2009. secondly, relying on another decision of the apex court referred to above, it is submitted that the right of appeal is to be governed by the law prevailing at the time of institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of filing of the appeal. 7. on the strength of the aforesaid observations of the apex court and also on the date of the effect of proviso to section 372 of cr.p.c., submission therefore made is that the appeal by cws 2 and 5 should not have been entertained by the lower appellate court. at the same time, learned counsel for the petitioners did not dispute the position of cws 2 and 5 also being the victim in view of proviso to section 372 of cr.p.c. 8. on the other hand, learned counsel for respondents 2 and 3 argued that, apart from the complainant, several other witnesses cited in the charge sheet including the respondents 2 and 3 herein were the victims of the chit scheme introduced by the accused and some of the victims had entered into compromise with the accused and therefore, such of the victims did not support the prosecution case and so was the complainant pw-1, but however, there are several others who had been the victims of the chit transaction and chit business run by the accused. the very fact that this court allowed the revision petition filed by respondents 2 and 3 and directed the trial court to proceed with the examination of the said respondents, itself goes to show that respondents 2 and 3 though were cited as witnesses, in fact they were also the victims of the acts committed by the accused. as such, even as on the date of the case being registered against the accused persons, respondents 2 and 3 were the victims and merely because, they also were examined as witnesses for the prosecution and the case ended in acquittal, that does not mean that respondents 2 and 3 before this court cannot prefer an appeal by taking shelter under the proviso to section 372 of cr.p.c. 9. having thus heard both sides, the question that is raised for consideration at the beginning is now answered. 10. in the light of the submissions put forward by both sides, it is clear that respondents 2 and 3 before this court who were examined as pws 7 and 8 in the trial court were also the victims of the chit fund business run by the accused. it is another matter that incidentally, the said respondents 2 and 3 were also examined as prosecution witnesses and the case ultimately ended in acquittal. but that does not change the position of respondents 2 and 3 and they continued to remain as the victims. 11. proviso to section 372 of cr.p.c. 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.] 12. it is therefore clear from the proviso which was brought into force with effect from 31.12.2009 that a victim also has a right to prefer an appeal against the order passed by the trial court acquitting the accused. as far as the definition of ‘victim’ is concerned, section 2(wa) defines the ‘victim’ as follows:- “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; 13. it is therefore clear from a combined reading of the proviso and the definition that, respondents 2 and 3 herein come within the definition of the victim. having held so, whether the proviso under consideration can be said to be applicable and can be pressed into service by respondents 2 and 3 is the point for consideration. 14. in the decision of national commission of women vs. state of delhi (2011 air scw 61), the apex court considered the proviso to section 372 of cr.p.c., and observed that the said proviso gives a limited right to the victim to file an appeal in the trial court against the order of criminal court acquitting the accused or convicting him for lesser offence or imposition of inadequate compensation and went on to observe that the proviso may not be applicable as it came in the year 2009. though learned counsel for the petitioners put too much emphasis on the expression “the proviso may not thus be applicable as it came in the year 2009”, it has to be mentioned that the said observations here made in the context of the special leave petition being filed not by the victim, but by the national commission of women and the leave to file slp had been granted to the commission by order dated 02.04.2009 i.e., much before the proviso actually came into force. at the same time, the apex court also observed that proviso would confer the right only on victim. 15. therefore, in my considered opinion, the aforesaid observations of the apex court will have to be read in the context of the matter before the court that too in respect of slp filed not by the victim, but by the national commission of women. whereas, in the case on hand, the appeal before the lower appellate court was preferred by the victims i.e., cws 2 and 5 – respondents 2 and 3 herein. 16. as far as the decision in the case of nahar industrial enterprises ltd. vs. hong kong and shanghal banking corporation ((2009) 8 scc 646) is concerned, the principles which have been excerpted or extracted from the decision of the apex court in garikapati veeraya vs. n.subbiah choudhry at para-127 of the decision is concerned, though learned counsel for the petitioners referred to the principles which is stated at para-23(iv) of the garikapati veeraya’s case, the said principle will have to be read in the context of the provisions of the cs.p.c. and cannot be read into the proviso now added to cr.p.c. by virtue of the amendment effected on 31.12.2009 and hence, the said decision is inapplicable to the present case. 17. in the light of the aforesaid reasoning, the lower appellate court committed no error in entertaining the appeal filed by respondents 2 and 3 herein and learned judge of the lower appellate court has also considered the effect of proviso to section 372 of cr.p.c. at para-15 of his judgment and the reasoning given cannot be termed as erroneous. 18. in the result, revision petition lacks merit and is dismissed.
Judgment:

(Prayer: This Crl.R.P. is filed u/S.397 r/w 401 of Cr.P.C praying to set aside the order dated 01.10.2011 in Crl.A.No.132/11 on the file of the P.O., FTC-XVI, Bangalore city and consequently confirm the order dated 18.11.10 in C.C.No.12330/04 on the file of the I Addl.CMM, Bangalore.)

1. The question that is involved in this revision petition is as to the applicability of the proviso to Section 372 of Cr.P.C. and whether the said proviso is applicable with retrospective effect.

2. Brief facts which have given raise to the aforesaid question are that, the petitioners herein were put on trial in C.C.No.12330/04 in respect of the offences punishable under Sections 3, 4 and 5 of the Prize and Money Circulation (Banning) Act, 1978 r/w Section 420 of IPC and the case of the prosecution against the petitioners were that the petitioners who were accused Nos.1 to 6 before the trial Court, induced several persons including the complainant to subscribe to a chit scheme which was run by them and the complainant and other persons believing the accused, contributed lakhs of rupees towards the chit fund and accused after collecting money from the complainant and other witnesses, failed to repay the money as promised and they also took loan from the complainant and other witnesses and thus, committed the act of cheating. It was also the case of the prosecution that accused Nos.2, 3 and 6 had issued cheques in connecting with the chit fund and these cheques were issued to CWs 1 to 6 without the accused having sufficient funds in the account.

3. After filing of the charge sheet and accused pleading not guilty, the trial Court proceeded to record the statement of the witnesses and after the complainant PW-1 Dhanalakshmi and PWs 2 to 4 turning hostile, the trial Court thought it fit to close the case by the order dated 17.12.09. The present respondents 2 and 3 though were cited as witnesses CWs 2 and 5 were not examined and therefore, they approached this Court in Crl.P.No.3587/10 for a direction to the trial Court to examine them also and the said petition was allowed by this Court and the order of the trial Court was set aside and trial Court was directed to proceed with the trial by examining the witnesses available.

4. Pursuant thereto, CWs 2 and 5 were also examined and on completion of the trial, learned trial Judge acquitted the accused persons in respect of all the offences with which they were charged. It is this order of acquittal that was called in question by CWs 2 and 5 i.e., the present respondents 2 and 3 before the lower appellate Court in Crl.A.No.132/11. Learned Judge of the lower appellate Court allowed the said appeal and judgment of acquittal passed by the trial Court was set aside and the matter was remanded to the trial Court with the following directions:-

(i) The learned Trial Judge should issue summons of NBWs to all the victims of the crime in this case who are not examined in this case by giving sufficient opportunity to the prosecution to examine those witnesses.

(ii) The Trial Court shall issue summons or NBWs to all the witnesses who are not examined in this case and secure their presence and dispose of the matter in accordance with law.

(iii) The Trial Court is directed to secure all the original cheques and other documents, which have been seized in this case from the investigating officer and mark all the documents in this case and proceed with the matter.

(iv) The Trial Court is directed to issue summons or NBWs to all the investigating officers, secure their presence and dispose of the matter in accordance with law.

It is this order of remand that is now called in question by the accused in this revision petition.

5. Sri.S.G.Bhagawan, learned Counsel for the petitioners urged one and the only ground for setting aside the order of remand passed by the lower appellate Court and the said ground is that, the lower appellate Court could not have entertained the appeal filed by CWs 2 and 5 as the proviso to Section 372 of Cr.P.C. was brought into force with effect from 31.12.2009, whereas the incident in question pertains to the year 2003.

6. In this connection, learned Counsel also placed reliance on the Apex Court’s decisions reported in 2011 AIR SCW 61 and (2009) 8 SCC 646. Referring to the observations made by the Apex Court in para-5 of the decision reported in 2011 AIR SCW 61, it is submitted that the proviso may not be applicable as it came in the year 2009. Secondly, relying on another decision of the Apex Court referred to above, it is submitted that the right of appeal is to be governed by the law prevailing at the time of institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of filing of the appeal.

7. On the strength of the aforesaid observations of the Apex Court and also on the date of the effect of proviso to Section 372 of Cr.P.C., submission therefore made is that the appeal by CWs 2 and 5 should not have been entertained by the lower appellate Court. At the same time, learned Counsel for the petitioners did not dispute the position of CWs 2 and 5 also being the victim in view of proviso to Section 372 of Cr.P.C.

8. On the other hand, learned Counsel for respondents 2 and 3 argued that, apart from the complainant, several other witnesses cited in the charge sheet including the respondents 2 and 3 herein were the victims of the chit scheme introduced by the accused and some of the victims had entered into compromise with the accused and therefore, such of the victims did not support the prosecution case and so was the complainant PW-1, but however, there are several others who had been the victims of the chit transaction and chit business run by the accused. The very fact that this Court allowed the revision petition filed by respondents 2 and 3 and directed the trial Court to proceed with the examination of the said respondents, itself goes to show that respondents 2 and 3 though were cited as witnesses, in fact they were also the victims of the acts committed by the accused. As such, even as on the date of the case being registered against the accused persons, respondents 2 and 3 were the victims and merely because, they also were examined as witnesses for the prosecution and the case ended in acquittal, that does not mean that respondents 2 and 3 before this Court cannot prefer an appeal by taking shelter under the proviso to Section 372 of Cr.P.C.

9. Having thus heard both sides, the question that is raised for consideration at the beginning is now answered.

10. In the light of the submissions put forward by both sides, it is clear that respondents 2 and 3 before this Court who were examined as PWs 7 and 8 in the trial Court were also the victims of the chit fund business run by the accused. It is another matter that incidentally, the said respondents 2 and 3 were also examined as prosecution witnesses and the case ultimately ended in acquittal. But that does not change the position of respondents 2 and 3 and they continued to remain as the victims.

11. Proviso to Section 372 of Cr.P.C. 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.]

12. It is therefore clear from the proviso which was brought into force with effect from 31.12.2009 that a victim also has a right to prefer an appeal against the order passed by the trial Court acquitting the accused. As far as the definition of ‘victim’ is concerned, Section 2(wa) defines the ‘victim’ as follows:-

“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;

13. It is therefore clear from a combined reading of the proviso and the definition that, respondents 2 and 3 herein come within the definition of the victim. Having held so, whether the proviso under consideration can be said to be applicable and can be pressed into service by respondents 2 and 3 is the point for consideration.

14. In the decision of National Commission of Women vs. State of Delhi (2011 AIR SCW 61), the Apex Court considered the proviso to Section 372 of Cr.P.C., and observed that the said proviso gives a limited right to the victim to file an appeal in the trial Court against the order of criminal Court acquitting the accused or convicting him for lesser offence or imposition of inadequate compensation and went on to observe that the proviso may not be applicable as it came in the year 2009. Though learned Counsel for the petitioners put too much emphasis on the expression “the proviso may not thus be applicable as it came in the year 2009”, it has to be mentioned that the said observations here made in the context of the Special Leave Petition being filed not by the victim, but by the National Commission of Women and the leave to file SLP had been granted to the Commission by order dated 02.04.2009 i.e., much before the proviso actually came into force. At the same time, the Apex Court also observed that proviso would confer the right only on victim.

15. Therefore, in my considered opinion, the aforesaid observations of the Apex Court will have to be read in the context of the matter before the Court that too in respect of SLP filed not by the victim, but by the National Commission of Women. Whereas, in the case on hand, the appeal before the lower appellate Court was preferred by the victims i.e., CWs 2 and 5 – respondents 2 and 3 herein.

16. As far as the decision in the case of Nahar Industrial Enterprises Ltd. vs. Hong Kong and Shanghal Banking Corporation ((2009) 8 SCC 646) is concerned, the principles which have been excerpted or extracted from the decision of the Apex Court in Garikapati Veeraya vs. N.Subbiah Choudhry at para-127 of the decision is concerned, though learned Counsel for the petitioners referred to the principles which is stated at para-23(iv) of the Garikapati Veeraya’s case, the said principle will have to be read in the context of the provisions of the Cs.P.C. and cannot be read into the proviso now added to Cr.P.C. by virtue of the amendment effected on 31.12.2009 and hence, the said decision is inapplicable to the present case.

17. In the light of the aforesaid reasoning, the lower appellate Court committed no error in entertaining the appeal filed by respondents 2 and 3 herein and learned Judge of the lower appellate Court has also considered the effect of proviso to Section 372 of Cr.P.C. at para-15 of his judgment and the reasoning given cannot be termed as erroneous.

18. In the result, revision petition lacks merit and is dismissed.