M/S. Kabra Brothers & Anr vs Piyush Binakiya
2023 Latest Caselaw 185 Cal

06.01.2023

Ct. 30 Amalranjan IN THE HIGH COURT AT CALCUTTA CRIMINAL REVISIONAL JURISDICTION APPELLATE SIDE

CRR 287 of 2019

M/s. Kabra Brothers & Anr.

Vs.

Piyush Binakiya

Mr. Ayan Bhattacharjee Mr. Somdev ash Mr. Suman Majumder...............for the petitioners

This revisional application is against an order of the

learned Chief Judge, City Sessions Court, Calcutta, setting

aside an order of the learned Magistrate dismissing the

proceedings under Section 138 of the Negotiable Instruments

Act for non-prosecution.

Being aggrieved, the accused petitioners have

preferred this revision praying for setting aside of the

judgment and order dated 17th December, 2018 of the

learned Chief Judge, City Sessions Court, Calcutta in

Criminal Appeal No. 90 of 2018.

Learned counsel for the petitioners has relied upon a

judgment of this court passed in CRR 3048 of 2016 - Mrinal

Kanti Sil Vs. Smt. Sampa Kabiraj, wherein the court referred

the matter to be placed before a larger Bench to decide the

following questions:

a. Whether a victim in a complaint case can avail of

the right to appeal under proviso to Section 372

Cr.P.C.?

b. If so, what is the form and manner of availing of

such remedy?

Section 2(wa) lays down:-

"2. Definitions.--In this Code, unless the context otherwise requires,--

...............2 [(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;].............."

In the present case, the petitioners herein are the

accuseds in the proceedings under Section 138 of the

Negotiable Instruments Act. The status of the petitioners

herein is not that of a victim just because he has suffered a

judgment against him.

The provisions of Section 372 of the Cr.P.C is

available to a victim and an appeal under Section 378 of the

Cr.P.C is preferred by a complainant or the State against an

order of acquittal of the accused.

Learned counsel for the petitioners submits that an

appeal was preferred against an order of acquittal before the

learned Sessions Judge under Section 372 of the Cr.P.C.

It is the case of the petitioners that the learned

Sessions Judge did not have the jurisdiction to decide an

appeal under the said provision of law.

Accordingly, the issue is not similar to the reference

preferred by this court in CRR 3048 of 2016, as the

complainant and the accuseds in this proceedings are neither

of them victims. Thus the prayer for referring the matter is

rejected.

The revision to run in the list for hearing.

Liberty is granted to all parties to act in terms of a

copy of the order downloaded from the official website of this

court.

( Shampa Dutt (Paul), J. )