2017 (2) TMI 1288 - HC - Indian Laws

Permission to Appeal Granted in Criminal Case

The court granted leave to the petitioner/appellant/complainant to file an appeal, allowing Crl.O.P.No.24235 of 2016, as the order of dismissing the ... Non-payment of processing fee - The emphatic stand of the Petitioner is that on 01.12.2015 he was present before the trial Court and since NBW was pending against the Respondent, on 30.12.2015, C.C.No.77 of 2007 was dismissed by the trial Court mainly on the ground that on behalf of the Petitioner/Appellant/Complainant, a process fee was not paid and also there was no representation on his side and also that, the Petitioner/Complainant had not appeared before the trial Court continuously and there was also no representation etc. Held that: - It is to be borne in mind that the High Court has requisite power to review at large the whole gamut of materials available on record in a given trial Court's case and while so doing, it will take into consideration the views of the trial Judge. Also that, in the present case, the trial Court had dismissed the main case, because of the reason that on behalf of the Petitioner/Appellant/ Complainant, there was no representation in the main case in C.C.No.77 of 2007 and also that, no process fee was paid in regard to the execution of NBW. In fact, a crime is essentially a wrong against the Society and the State. As such, any compromise between the Complainant and an Accused ought not to absolve the Accused from Criminal responsibility, if the offences are of private nature and not serious ones. It can be compounded, if it is punishable offences and in respect of others compoundable can be effected with the permission of the Court. Maintainability of Complaint - Held that: - In a Complaint under Section 138 of the Negotiable Instruments Act, the Complainant is having a very vital stake in the matter. Therefore, the Complaint ought not to be dismissed in a mechanical, routine or in a cavalier fashion. This Court is of the considered view that the order of dismissing the complaint in C.C.No.77 of 2007 passed by the trial Court on 30.12.2015 needs to be examined by this Court in a threadbare fashion with a view to find out whether there are prima facie sufficiency of cause/materials on the side of the Petitioner/Complainant. Matter on remand. Issues Involved:1. Service of notice to the respondent.2. Dismissal of the complaint by the trial court.3. Maintainability of the complaint under Section 138 of the Negotiable Instruments Act.4. Right of appeal and special leave to file an appeal under Section 378(4) Cr.P.C.5. Interpretation of statutory provisions and relevant case laws.Issue-Wise Detailed Analysis:1. Service of Notice to the Respondent:The court noted that service of paper publication was effected in Tamil and English dailies as directed. Despite this, the respondent was absent, and there was no representation on their behalf. The court held the service against the respondent as sufficient.2. Dismissal of the Complaint by the Trial Court:The trial court dismissed the complaint primarily because the petitioner/complainant did not pay the process fee, failed to appear continuously, and did not take steps to produce the respondent/accused despite sufficient time being granted. The trial court issued a Non-Bailable Warrant (NBW) against the respondent/accused, which remained pending, and no further steps were taken by the petitioner/complainant to conduct the case.3. Maintainability of the Complaint under Section 138 of the Negotiable Instruments Act:The petitioner filed the complaint under Section 138 of the Negotiable Instruments Act, 1881, which was taken on file on 14.03.2007. The petitioner argued that the respondent evaded service, leading to the issuance of a Bailable Warrant and subsequent NBW. The petitioner contended that the original cheque was missing from the court records, causing adjournments. The court emphasized that Section 138 cases are civil in nature but given a criminal color to ensure the payment of the amount to the payee. The court reiterated that the primary interest of the complainant is to recover the money rather than seek retribution.4. Right of Appeal and Special Leave to File an Appeal under Section 378(4) Cr.P.C.:The court discussed the right of appeal as a substantive right, not merely procedural. It highlighted that a complainant can file an application for special leave to appeal against an order of acquittal under Section 378(4) Cr.P.C. The court cited various case laws to support the view that the right of a victim to prefer an appeal is independent and not subservient to the state's right of appeal. The court concluded that the complainant, being a payee or holder in due course, is entitled to seek leave under Section 378(4) Cr.P.C.5. Interpretation of Statutory Provisions and Relevant Case Laws:The court referred to multiple decisions to interpret the statutory provisions, emphasizing the need for a harmonious construction of statutes. It noted that the proviso to Section 372 Cr.P.C., which came into effect on 31.12.2009, is not retroactive and does not apply to the present case. The court held that Section 378(4) Cr.P.C. places no restriction on the complainant and that the complainant's application for leave to appeal against an acquittal is maintainable.Conclusion:The court granted leave to the petitioner/appellant/complainant to file an appeal, finding that the order of dismissing the complaint by the trial court needs to be examined thoroughly. The Crl.O.P.No.24235 of 2016 was allowed.