1296A

IN THE

HONBLE HIGH COURT OF JUDICATURE

AT ALLAHABAD

IN THE MATTERS OF

ANIL KUMAR AGARWAL............................................................................................APPELLANT

VERSUS

STATE OF UP......RESPONDENT

CRIMINAL CASE NO. 3171/2016

(UNDER SECTION 482 OF THE CODE OF CRIMINAL PROCEDURE, 1973)

MEMORIAL ON BEHALF OF APPELLANT

 TABLE OF CONTENTS

Index of Authorities.................................................................................................................3

Statement of Jurisdiction.........................................................................................................4

Statement of Facts....................................................................................................................5

Issues for Consideration..........................................................................................................6

Summary of Arguments...........................................................................................................7

Arguments Advanced...............................................................................................................8

Prayer......................................................................................................................................11

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 INDEX OF AUTHORITIES

Cases

Ashok Kumar Srivastava vs State of UP, in application u/s 482 no. 5934 of 2012...................9

The Bhajanpura Cooperative Urban Thrift & Credit Society LTD. vs Sushil Kumar,

CRL.A.972/2012..................................................................................................................10

The Tata Iron & Steel Company Limited vs M/s Atma Tube Products Limited and another,

Criminal Misc. No. M-24196 of 2009.................................................................................10

Ved Prakash Yadav and 2 others vs. State of U.P. And 2 others, criminal revision no. 3539 of

2015........................................................................................................................................9

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 STATEMENT OF JURISDICTION

It is most humbly submitted before this Honble High Court has the requisite territorial and

subject matter jurisdiction to entertain and adjudicate this matter under Section 482 of the

Code of Criminal Procedure, 1973.

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 STATEMENT OF FACTS

I.

The present factual matrix concerns with the application under Section 482 CrPC filed with

the prayer to quash the judgement and order passed by the Additional District and Sessions

Judge, Fast Track Court, Jhansi in the matters of Anil Kumar Aggarwal vs Braj Bhushan

Lahariya and Anr.

II.

The opposite party had taken Rs. 1,62,000/-, time to time, from the applicant and had issued

two cheques in turn of the said amount to the applicant, which were dishonoured due to

insuffiency of funds in the account of the opposite part. After fulfillment of the legal

formalities, the applicant filed a complaint under Section 138 Negotiable Instruments Act,

1881 and Section 420 of the Indian Penal Code, 1872.

III.

The Magistrate concerned vide its order after trial acquitted the opposite party from the

charges. Aggrieved with the said judgement and order, the applicant filed an appeal which

was turned down on maintainability that an appeal can only be filed before the High Court

with its leave.

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 ISSUES FOR CONSIDERATION

I. Whether against the same judgment and order of acquittal in a complaint case,

in a situation when victim and complainant both are same persons, victim may

file appeal under the proviso to Section 372 CrPC before the Sessions Judge or

such appeal shall lie before the High Court?

A. The rights of the victim, under Section 372, in a Complaint case cannot be

abridged.
B. The victim in a private complaint case has the right to appeal under Section

372 CrPC.
C.

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 SUMMARY OF ARGUMENTS

I. Whether against the same judgment and order of acquittal in a complaint case,

in a situation when victim and complainant both are same persons, victim may

file appeal under the proviso to Section 372 CrPC before the Sessions Judge or

such appeal shall lie before the High Court?

It is most humbly submitted before this Honble High Court, that against the order of

the acquittal in a complaint case, in a situation when victim and complainant both are

the same person, may file an appeal under the provisio to Section 372 CrPC before the

Sessions Judge.

A.

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 ARGUMENTS ADVANCED

I. Whether against the same judgment and order of acquittal in a complaint case,

in a situation when victim and complainant both are different persons, victim

may file appeal under the proviso to Section 372 CrPC before the Sessions Judge

or such appeal shall lie before the High Court?

It is most humbly submitted before this Honble High Court that against the order of

the acquittal in a complaint case, in a situation when victim and complainant both are

the same person, may file an appeal under the proviso to Section 372 CrPC before the

Sessions Judge.
A. The rights of the victim, under Section 372, in a Complaint case cannot be

abridged.
The Code of Criminal Procedure Amendment, 2008 inserted the definition of victim

under Section 372, 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. This definition

provided three circumstances where the victim shall have a right to prefer an appeal

against any order-

(a) acquitting the accused,
(b) convicting for a lesser offence,
(c) imposing inadequate compensation.
The Amendment introduced the definition of the word "victim" to confer certain right

on the guardian and legal heirs of the victim, for example the right to file an appeal

against the adverse order under Section 372 Cr.P.C. and claim compensation under

new Section 357 -A Cr.P.C. Thus under the present factual matrix the Appellant is a

victim and has the right to file an appeal under Section 372 as the victim cannot be

deprived of her statutory right to file an appeal before the Sessions Judge concerned

against the judgment and order of acquittal just on the basis of technicalities like

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 absence of the word "complaint or complainant" in the proviso to Section 372 Cr.P.C.

This is just a technicality. Since the word "complaint" is not mentioned or included in

the proviso to Section 372 Cr.P.C., the victim lady should not be compelled to seek

the leave to appeal from the High Court.1

The purpose of Section 372 is to grant the right to appeal to a victim, on comparing

the definition of the word "victim" and that of injury, the word "injury" is included in

the definition of the victim. Hence, the victim means the person who has suffered any

loss or injury caused by reason of the act or omission, for which the accused person

has been charged. Thus, any person who suffers any loss or injury illegally in body,

mind, reputation or property by reason of the act or omission of the accused person, is

victim.
Section 372 Cr.P.C. has been inserted in the Code of Criminal Procedure

(Amendment) Act, 2008 and has come into force on 31.12.2009, hence against the

order of acquittal passed by Chief Judicial Magistrate, the appeal of the complainant

and the victim was maintainable u/s 372 Cr.P.C. before the Sessions Judge. Hence the

contention of learned counsel for the revisionists that the appeal of the complainant

was not maintainable and the judgment and order of the lower appellate court is

without jurisdiction should be set-aside has no substance.2

The Kerala High Court was of the view that 'victim' under Section 2 would include

'complainant' in a complaint case filed under Section 138 N.I. Act and therefore, as a

matter of right, would be entitled to prefer appeal as provided under Section

372 Cr.P.C.3
B. The victim in a private complaint case has the right to appeal under Section

372 CrPC.

1 Ashok Kumar Srivastava vs State of UP, in application u/s 482 no. 5934 of 2012.
2 Ved Prakash Yadav and 2 others vs. State of U.P. And 2 others, criminal revision no. 3539 of 2015.
3 The Bhajanpura Cooperative Urban Thrift & Credit Society LTD. vs Sushil Kumar, CRL.A.972/2012.
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 It is most humbly submitted before this Honble High Court that the Punjab and

Haryana High Court in a landmark judgement has laid down certain conditions where

a victim has the right to appeal under Section 372-

(i) the complainant in a complaint-case who is a victim also, shall continue to

avail remedy of appeal against acquittal under Section 378(4) only except

where he/she succeeds in establishing the guilt of an accused but is aggrieved

at the conviction for a lesser offence or imposition of an inadequate

compensation, for which he/she succeeds in establishing the guilt of an

accused but is aggrieved at the conviction for a lesser offence or imposition of

an adequate compensation, for which he/she shall be entitled to avail the

remedy of appeal under proviso to Section 372;

(ii) those victims of complaint-cases whose right to appeal have been

recognized under proviso to Section 372, are not required to seek leave and

special leave to appeal from the High Court in the manner contemplated

under Section 378(3)& (4), for the Legislature while enacting proviso

to Section 372 has prescribed no such fetter nor has it applied the same

language used for appeals against acquittals while enacting sub-Section (3) &

(4) of Section 378 of the Code."4

4 The Tata Iron & Steel Company Limited vs M/s Atma Tube Products Limited and another,
Criminal Misc. No. M-24196 of 2009.
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 PRAYER

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited

it is most humbly prayed before this Honble High Court to

- Allow the Appellant to appeal before the Sessions Court under Section 372 CrPC.

And further pass any other order in favour of the prosecution as may be deemed fit by the

Honble High Court.

All of which is most humbly and respectfully submitted.

Place: High Court of Judicature Allahabad Counsel No. 1296A

Date: March 14th, 2017 Counsel for the Appellant

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