TaxTMI 
TaxTMI 
2023 (7) TMI 37
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....ate Court No.1, Namakkal and treat his grounds of appeal in Crl.A.No.30 of 2007 laid before the Sessions Court as grounds of revision. In the light of the judgment rendered by the Hon'ble Full Bench of this Court in K.Rajalingam v. Suganthalakshmi vide order dated 28.05.2020 reported in [2020 SCC Online Mad 1052] and the clarifying order by the Hon'ble Division Bench dated 16.07.2021. 3. Now, reverting back to the facts, P.S.Deivaraj filed a private complaint before the Judicial Magistrate Court No.1, Namakkal stating that R.Mani borrowed a loan of Rs. 2,00,000/ from him on 01.02.2006 with a promise to repay the said loan amount with interest at the rate of 18% within five months and gave a post-dated cheque bearing No.866295 dated 01.07.2006. When the said cheque was presented for collection, it was returned with an endorsement "funds insufficient". When R.Mani was put to notice about the return of the cheque and to pay the cheque amount within 15 days, he did not pay the money. Hence, R.Mani is to be tried for the offence under Section 138 of the Negotiable Instruments Act, 1881. 4. The Judicial Magistrate No.1, Namakkal, took cognizance of the offence and the compl....
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....se instituted on a police report, has a better place in the criminal justice delivery system than a victim in a private complaint case? (5)Whether the term 'victim' as defined in Section 2(wa) of the Code of Criminal Procedure excludes a complainant in a private complaint case, though he has suffered loss or injury on account of the offence committed against him? And (6)Whether the view held in the judgment of this Court in Selvaraj Vs. Venkatachalapathy, reported in MANU/TN/1313/2014: 2015(1) MWN (cr)DCC 26 (Mad.) reflects correct exposition of law or the same requires to be overruled?" 7. The Hon'ble Chief Justice constituted a Bench consisting of three Judges to answer the reference, the consequence arising out of the same. The Hon'ble Full Bench of this Court in G.Ganapathy v. N.Senthilvel reported in [(2016) 4 CTC 119] held that the appeal by the victim in a private complaint against the order of acquittal dismissed by the Judicial Magistrate Court ought to be filed before the Sessions Court under proviso to Section 372 of Cr.P.C and not before the High Court under Section 378 (4) of Cr.P.C. 8. The Hon'ble Full Bench answered the ref....
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....ull Bench, concluded that the decision rendered in S.Ganapathy case is per-incuriam, since it has been decided without reference to the binding authority in Damodar S.Prabhu case and no longer a good law by virtue of the judgment of the Hon'ble Supreme Court in Mallikarjun Kodagali (d) through legal representatives v. State of Kanataka [(2019) 2 SCC 752]. 12. The Hon'ble Full Bench issued the following directions in paragraph No.28 of its judgment, which reads as below:- "28.Accordingly, we answer the reference as under. 1. As against an order of acquittal passed by a Magistrate on a complaint, an appeal will lie only before the High Court, under Section 378 (4) of Cr.PC. In such cases, the complainant has to seek for Special leave under Section 378 (5) of Cr.PC. The first question in the order of reference is answered accordingly. 2. By virtue of the answer given to the first question, the questions 2 to 6 raised in the order of reference becomes more academic and therefore, there is no need to undertake the exercise of answering those questions. 3. The decision rendered in S.Ganapathi case is declared as a judgement per-incuriam, sin....
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....e Appellant and the accused as the respondent. The Memorandum of grounds of Criminal Appeal filed before the Sessions Court will be considered as the memorandum of grounds of appeal in the renumbered Criminal Appeal. (e) In cases, where the Sessions Court has reversed the order of acquittal passed by the Magistrate and convicted the accused and this order has not become final or the same has not been acted upon, the accused person has to necessarily challenge the said order by filing a criminal revision petition before this Court by quoting this Full Bench judgement. After notice is served on the complainant and he enters appearance, the same should be treated as an Appeal pending before this Court against the order of Acquittal passed by the Magistrate, by disregarding the order passed by the Sessions Court. In all those cases, the complainant must file a transpose petition and the Registry must convert the revision as Criminal Appeal by showing the complainant as the Appellant and the accused as the respondent. The Memorandum of grounds of Criminal Appeal filed before the Sessions Court will be considered as the memorandum of grounds of appeal in the renumbered Criminal ....
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....th a prayer to transpose himself as appellant and treat the revision case as appeal. 16. While considering the Miscellaneous Petition filed by the complainant in this case to get himself transpose in the revision petition filed by the accused against the order of conviction by the Sessions Court, reversing the order acquittal by the trial Court, this Court went through the background legal history of the application and found the above facts which has been culled out for easy reference. The reading of the direction found in paragraph No.28(3)(d) gives an impression that, (a) the order passed by the Sessions Court convicting the accused by reversing the order of acquittal passed by the Magistrate has to be disregarded. (b)The complainant must file a transpose petition. (c)The Registry must convert the same as Criminal Appeal by showing the complainant as the appellant and the accused as the respondent. (d)The Memorandum of grounds of Criminal Appeal filed before the Sessions Court will be considered as the Memorandum of grounds of appeal in the renumbered Criminal Appeal. 17. In the case in hand, pursuant to the direction passed by the Hon&#....
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....on 325, on proceedings recorded by another Magistrate. (o)decides an appeal. His proceedings shall be avoided. 20. No where in the Code, the higher Courts are empowered to disregard the order passed by the Courts below for want of jurisdiction by later declaration of law. Any order passed by the Courts below ought to be tested judicially in an appeal or revision but, cannot simply be disregarded or brushed aside. When the Code does not confer such power, the order of the Principal Sessions Judge, Namakkal in Crl.A.No.30 of 2017, dated 04.11.2019 based on the jurisdiction conferred on him and clarified by the Hon'ble Full Bench of this Court which was law binding on him cannot be disregarded for the reason, the subsequent Full Bench had declared the earlier judgment as per-incuriam. The decision taken by the competent Court based on the law prevailing at the time of taking decision should always be protected and if at all any interference is required, it can be only by the higher Court exercising its supervisory power conferred under the Constitution or the appellate power or revisional power or the inherent power conferred under the Code by testing the reasoning ....
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....he Hon'ble Full Bench in paragraph No.28(3)(d), compelling the complainant to file a transpose petition by showing him as the appellant and the accused as the respondent is an unwanted exercise. If the revision petition filed by the aggrieved accused is converted into criminal appeal, the object gets satisfied and will go in tune with the Code of Procedure as declared by the Full Bench. 24. The reason to treat the criminal revision petition as appeal is obvious. It is needless to explain in detail. It will provide a larger canvas for the aggrieved to paint his grounds. By converting the revision petition filed by the aggrieved accused as criminal appeal, it will satisfy his requirements without much ado. The memorandum of grounds of revision filed by the accused if treated as grounds of appeal with liberty to the accused to file additional grounds if necessary, the right of the respondent/accused gets protected. 25. In view of this Court, even a formal conversion not required, the inherent power conferred to the High Court under Section 482 Cr.P.C and supervisory power of the High Court conferred under Article 227 of the Constitution if exercised, in the case of this natu....
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....e appeal was heard and decided when the Hon'ble three Judges Bench judgment in S.Ganapathy case holding the field. 29. The subsequent Full Bench, in the light of the Hon'ble Supreme Court judgement, had declared that an appeal against acquittal by the trial Court should be filed by the victim directly in High Court. Judicial discipline mandates a Single Judge to follow the dictum laid by a Bench of Higher strength. There cannot be no second opinion on this principle. However, the appeal, which was already heard by the Sessions Court, pursuant to the earlier Bench judgment and prior to the declaration of law by the subsequent Full Bench can by no means be disregarded or ignored as non est in law. The judgment duly rendered cannot be said as non est in law, unless it suffers incurable defect or irregularities mentioned under the Code of Criminal Procedure. 30. It is also imminent to record at this juncture, that the order of the Hon'ble Supreme Court in Vikram Mankal and others v. S.Srinivasan, Spl.L.P.(Crl.)No.11021 of 2019 dated 09.11.2021, the Special Leave Petition preferred against the order of this Court dismissing the revision petition preferred by the accuse....
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....eque, it was presented for collection. The cheque returned with a memo stating 'insufficient fund'. Hence, after causing statutory notice, the complaint was filed. 35. In the trial, the complainant mounted the witness box and subjected himself for examination as PW-1. The cheque, remittance challan, return memo, intimation memo, statutory notice, acknowledgement card, reply of the accused were marked as Exs.P1 to P7 respectively. 36. To disprove the case of the complainant, the accused got himself examined as DW-1 and marked his reply, copy of the representation to the Chief Minister Cell, Police officials and Human Rights Commission, acknowledgements received for the addressee of the Chief Minister Cell, Police officials and the Human Rights Commission, complaint to the bank officials with acknowledgement card were marked as Exs.D1 to D5. 37. Finding of the trial Court:- The trial Court after considering the evidence placed before it by the complainant and the evidence placed by the accused, dismissed the complaint recording the admission of the complainant that he is not able to recollect the income tax he paid. He has not disclosed the loan of Rs. 2,00,000/- ....
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....d his family members. When he refused, he was taken to a secluded place. The financiers and the police obtained his sign in six blank cheques. He was forced him to give an undertaking that he will surrender the vehicle and get back the cheques. In this connection, he gave a complaint to the Chief Minister Cell, police officials and Human Rights Commission. Copy of it is marked as Exs.D2. He deny the issuance of the cheques for discharging a liability. In his reply notice, he had denied his signature in the cheque. To substantiated his defence, the accused had marked the copies of the complaint sent soonafter the alleged forcible extortion of signed blank cheques. 42. Heard the learned counsel appearing for the accused and the learned counsel appearing for the complainant and perused the records. 43. The complainant P.S. Deivaraj in his cross examination had admitted that, he is a financier and also doing real estate business. He is an income tax assessee and he pay tax disclosing his income. However, he is not able to recollect his annual income and tax paid. He is not sure whether he had disclosed the loan transaction of Rs. 2,00,000/- with the accused. He admits that as a f....
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....ccused claims that his signed cheque was given in blank to some third parties under threat in connection with the hire purchase agreement with them, to probablise the defence he had not produced proof for the said hire purchase transaction. Except the copy of the complaint to the police, Chief Minister Cell and Human Rights Commission, he has not placed any other document to show that he had purchased a vehicle under hire purchase agreement from 'Subalakshmi' and 'Yogalakshmi' finance. He also failed to produce document to show that those two finance companies have any connection with the complainant. 50. The complaint purport to have been given to the police, Chief Minister Cell, Human Rights Commission are all dated 25.07.2006 or thereafter. However, the acknowledgement card indicates that they were delivered to the addressee long thereafter, the postal seal on the acknowledgement card also indicates that they were not posted on the date of the complaint. In his complaints to the authorities, the accused had alleged, he was forcibly taken from his house by the police and the financiers. Six Indian Overseas Bank Cheques signed in blank were obtained from him by ....