Heard the Learned Counsel for the Petitioner.
2.Although the Court Notice on the Respondent/Accused was served, today there is no representation on his behalf either in person or through Learned Counsel. As such, this Court holds the service against the Respondent/Accused as 'sufficient'.
3.The Petitioner/Appellant/Complainant has filed the instant Crl.O.P.No.23512 of 2016 in Crl.A.Sr.No.40280 of 2016 before this Court seeking 'Grant of Leave' to prefer an Appeal under
Section 378(4) Cr.P.C.
4.It transpires that the Learned Judicial Magistrate, Kotagiri in S.T.C.No.314 of 2010 while passing the impugned order on 01.08.2016 had observed the following:
The Complainant called absent, no representation for complainant side. NBW pending against this accused more than 3 years. Complainant side did not take any steps to execute the NBW. Today complainant also not appeared. Hence, complainant is dismissed U/s.256 Cr.P.C. and acquitted the Respondent/Accused under
Section 256 Cr.P.C.
5.Questioning the Legality and Validity of the impugned order of dismissal of the complaint passed in S.T.C.No.314 of 2010 by the trial Court on 01.08.2016, the Learned Counsel for the Petitioner/ Appellant has filed the present Criminal Appeal in Sr.No.40280 of 2016, before preferring the said Criminal Appeal (in Sr.No.40280 of 2016), the Petitioner/Appellant/Complainant seeks permission from this Court to 'Grant him Leave' to prefer the Appeal in question.
6.The Learned Counsel for the Petitioner/Appellant/ Complainant urges before this Court that the Respondent/Accused soon after receipt of summons had appeared before the trial Court and when the case was posted for cross examination of P.W.1, neither the Respondent/Accused nor his Learned Counsel had appeared before the trial Court to make a representation, because of the non appearance of the Respondent/Accused and his Learned Counsel, the trial Court had issued a Non Bailable Warrant against the Respondent.
7.In this connection, the Learned Counsel for the Petitioner/ Appellant/Complainant projects an argument that for the past three years, the Petitioner/Appellant/Complainant is taking serious steps to execute the Non Bailable Warrant, but the Respondent/Accused was absconding.
8.Also, it is the stand of the Petitioner/Appellant/Complainant that on 01.08.2016 because of viral fever, his Learned Counsel had not represented the case in S.T.C.No.314 of 2010 because of the reason that there was 'Boycott of Court'. Therefore, the trial Court had dismissed the complaint.
9.The Learned Counsel for the Petitioner/Appellant/ Complainant comes out with a stand that the Respondent/Accused was issued with a statutory notice dated 08.03.2010 calling upon him to pay the cheque amount within 15 days from the date of receipt of the said notice. However, the Respondent/Accused had not settled the cheque amount and also that, he had not issued any reply.
10.It is to be noted that in the instant case, the Respondent/ Accused had issued a cheque on 20.02.2010 bearing No.481835 drawn on Indian Overseas Bank, Kotagiri Branch for a sum of Rs.50,000/- to and in favour of the Petitioner/Appellant/ Complainant towards discharge of his Legal liability. It appears that the cheque when presented for collection through Banker, the same got returned with an endorsement 'Funds Insufficient' through Memo dated 22.02.2010 and the same was returned to the Appellant's Banker on 23.02.2010.
11.At this stage, this Court has perused the Memorandum of Grounds of Appeal' and is of the considered view that the Petitioner/ Appellant/Complainant has come out with a specific case that the trial Court should have provided him an opportunity to take steps to execute NBW.
12.There is no two opinion of a vital fact that 'NBW' is pending against the Respondent/Accused for more than three years. Also that, the Learned Counsel for the Petitioner/Appellant/Complainant submits that the Petitioner/Appellant/Complainant was not able to appear before the trial Court on 01.08.2016 when S.T.C.No.314 of 2010 came up for hearing because of 'viral fever' and also there was 'Boycott of Courts' by the Lawyers.
13.In fact,
Section 378(4) Cr.P.C. does not impose any fetter on the Complainant. At this stage, this Court aptly cites the decision of the Hon'ble Supreme Court (Three Judge Bench) in Damodar S.Prabhu V. Sayed Babalal H., AIR 2010 Supreme Court 1907 wherein it is observed that 'In case of acquittal by the Judicial Magistrate of First Class the complainant could appeal to High Court under
Section 378(4) Cr.P.C. and for Special Leave to Appeal to Supreme Court under
Article 136 of the Constitution of India'.
14.The legal position is that just because 'Leave' was granted, it does not prevent the Court from dealing with the point whether 'Appeal' is competent. At the time of final hearing of Appeal, the plea of maintainability of Appeal can be raised on legal plane. It is to be kept in mind that 'Leave Petition' should not be refused without assigning valid reasons therefor.
15.The aim of 'Seeking Leave to prefer Appeal' is to see that useless Appeals are not filed against the orders of acquittal. At the same time, it cannot be forgotten that 'Refusal of Leave' has an effect of closing once and for all a possibility to scrutinize the Order/Judgment of a trial Court.
16.By virtue of the ingredients of
Section 378(4) Cr.P.C., an individual can assail an order of acquittal by way of Appeal to High Court, of course after 'Seeking Leave'. If not Appeal is filed by that person, then, no Revision would lie, as per decision N.G.Tayawade V. State of Bombay, (1958) 60 Bom.L.R. 1339.
17.Besides this, the words 'any case instituted upon complaint' means only that class of cases were not merely a Complainant comes before Court with a petition of complaint, but the Magistrate takes cognizance of the offences alleged on the basis of that complaint, as per decision Sannanaika V. M.S.Prakash, 2006 CRI.L.J. 1836 (DB).
18.In view of the categorical stand taken on behalf of the Petitioner/Appellant/Complainant that on 01.08.2016 when S.T.C. No.314 of 2010 came up for hearing before the trial Court, the Advocates had 'boycotted the Court' and also that the Petitioner/ Appellant/Complainant was not in a position to appear in person because he was suffering from viral fever, this Court, with a view to examine the correctness of the order of dismissal dated 01.08.2016 in S.T.C.No.314 of 2010 passed by the trial Court, 'Grants Leave' to the Petitioner, in the interest of Justice.
19.In fine, the Crl.O.P.No.23512 of 2016 is allowed.