Telangana High Court
The Karimnagar District ... vs Veggalam Narasimha Chary on 28 September, 2022
Bench: K.Surender
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.817 of 2009
ORDER:
1. The defacto complainant filed the present appeal
aggrieved by the order of acquittal recorded by the Judicial
Magistrate of First Class at Vemulawada in CC No.247 of 2008
dated 26.03.2009.
2. Complaint was lodged before the Police Gangadhara vide
Crime No.65 of 2003 for the offences under Sections 457 and
380 of IPC. After investigation, charge sheet was filed for the
offences under Sections 408 and 381 r/w 34 of IPC. Learned
Magistrate found after concluding trial that the respondents 1
to 3 are not liable to be convicted and found them not guilty
for the aforesaid offences.
3. The preliminary objection that was raised is that the
appeal will not lie against acquittal in a police case under
Section 378(4) of Cr.P.C, when preferred by defacto
complainant.
4. Learned counsel for the appellant would submit that in
fact this Court had granted leave when the criminal appeal
was filed, for which reason, the appeal has to be heard and
disposed off on merits. The complaint is filed by the defacto
complainant under Section 378(4) of Cr.P.C. Appeal under
Section 378(4) of Cr.P.C can only be made if a case is
instituted upon complaint, which means a private complaint
instituted and taken cognizance by the Court under Section
200 of Cr.P.C and does not include a case investigated and
final report filed by the police.
5. The remedy left in such cases when the State does not
prefer an appeal under Section 378(1)(b) to the defacto
complainant is to file revision under Section 397 r/w 401 of
Cr.P.C questioning the correctness of the order of acquittal.
6. Proviso to Section 372 of Cr.P.C was inserted by an Act
No.5 of 2009 with effect from 31.12.2009, which gives a right
to the victim to prefer an appeal against order of acquittal of
accused or conviction of lesser offence or inadequate
compensation to the court which appeal would lie ordinarily
against conviction of such Court.
7. Present appeal is filed on 27.07.2009 and the Court
passed order as 'Heard. Leave granted'. The said order was
prior to the amendment which is dated 31.12.2009. It is not
Public Prosecutor but the defacto complainant who has
preferred present appeal under Section 378(4) of Cr.P.C, which
can be done only in the case of a private complaint which has
been instituted. For illustration, Negotiable Instruments Act,
Drugs and Cosmetics Act etc.,
7. Learned counsel for the appellant relied upon the
judgment of Hon'ble Supreme Court in the case of Subash
Chand v. State (Delhi Administration)1. The said decision is
no way helpful to the appellant in the present facts of the case.
The Hon'ble Supreme Court was dealing with the amendment
made to Section 378 by Act 25 of 2005 with effect from
23.06.2006. The judgment was referring to a private complaint
(2013) 2 Supreme Court Cases 17
and not a case instituted by the police pursuant to
investigation.
8. The appeal is dismissed on the ground of maintainability.
The remedy is left open to the appellant herein to challenge
the impugned judgment against which the present appeal is
filed.
9. Accordingly, the Criminal Appeal is disposed off.
__________________
K.SURENDER, J
Date: 28.09.2022
kvs
HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL APPEAL No.817 of 2009
Date: 28.09.2022.
kvs
