Dismissed

The Manager/Secretary, v. Basangouda S/O Viranagouda Kulkarni

Karnataka HC18 Dec 2020CRL.A/2619/2011

Case brief

AI extract

What is this about?

The High Court held that an appeal under Section 378(4) of Cr.P.C. is not maintainable when the underlying case was instituted on a complaint filed with the Police (making it a police report) rather than a direct complaint to the Magistrate as defined in Section 2(d) Cr.P.C.

What did the court decide?

The appeal filed by the appellant under Section 378(4) of Cr.P.C. was dismissed as not maintainable on the grounds that the case was instituted upon a police report, not a direct complaint to the Magi

The Manager/Secretary, Vs Basangouda S/O… — Civil Procedure and Limitation | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 18^TH DAY OF DECEMBER 2020

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BEFORE

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THE HON’BLE MR. JUSTICE PRADEEP SINGH YERUR

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VISHAL NPATTIHAL Digitally signedby VISHAL NPATTIHALDate:2020.12.2215:57:45+0530 CRIMINAL APPEAL NO.2619 OF 2011

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BETWEEN:

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THE MANAGER/SECRETARY SAGUNDATTI TALUK PRIMARY COOPERATIVE AGRICULTURAL AND RURAL DEVELOPMENT BANK SAUNDATTI, BELGAUM DISTRICT.

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… APPELLANT

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(BY SRI MALLIKARJUN C. BASAREDDY, ADVOCATE)

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AND:

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BASANAGOUDA S/O.VIRANAGOUDA KULKARNI, AGED ABOUT 78 YEARS, OCC: AGRICULTURE, R/AT SAUNDATTI.

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(SINCE R-1 IS REPORTED DEAD, THE APPEAL AGAINST HIM STANDS ABATED V.O.D.05.07.2019)

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KRISHNAJI S/O.NARAYAN HANCHATE, AGED ABOUT 74 YEARS, OCC: AGRICULTURE, R/AT SAUNDATTI.

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KALLANAGOUDA

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-2-

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TAMMANNAGOUDA PATIL, AGED ABOUT 63 YEARS, OCC: EX-CHAIRMAN OF PCARD BANK SAUNDATTI, R/AT SANGREESHKOPPA.

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(SINCE R-3 IS REPORTED DEAD, THE APPEAL AGAINST HIM STANDS ABATED V.O.D.05.07.2019)

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THE STATE OF KARNATAKA REPRESENTED BY ITS ADDL. STATE PUBLIC PROSECUTOR, HIGH COURT CIRCUIT BENCH, DHARWAD.

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… RESPONDENTS

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(BY SRI R.M.KULKARNI, ADVOCATE FOR R2; SRI RAMESH CHIGARI, HCGP FOR R4; APPEAL ABATED AGAINST R1 & R3 V.O.D.05.07.2019)

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THIS APPEAL IS FILED UNDER SECTION 378(4) OF CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT AND ORDER DATED 03.08.2010 PASSED IN C.C.NO.418/1993 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, SAUNDATTI AND ETC.

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THIS APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING :

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JUDGMENT

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This appeal is preferred by complainant aggrieved by the Judgment of acquittal passed by Additional Senior Civil Judge and J.M.F.C., Saundatti in Criminal Case No.418/1993, wherein the respondent/accused Nos.2

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and 3 were acquitted for the offences punishable under

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-3-

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Sections 408, 409, 477(A) and 109 of I.P.C. Aggrieved by the said Judgment of acquittal, complainant has preferred the present appeal under Section 378(4) of Cr.P.C.

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I have heard Sri R.M.Kulkarni, learned

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counsel for respondent No.2/accused No.2 and learned High Court Government Pleader for respondent No.4State.

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Learned HCGP submits that the appeal would not be maintainable on the facts and circumstances of the case. It is not in dispute that the complainant had filed a complaint before the Saundatti Police Station, based on which, criminal case came to be registered in Crime No.436/1990. Pursuant to which, based on the police report, charge sheet came to be filed. The said case ended up in acquittal of accused Nos.2 and 3 on 03.08.2010. Present appeal is filed on 01.12.2010. The provision invoked by the appellant is Section 378(4) of Cr.P.C. It is relevant to extract Section 378(4) of Cr.P.C.:

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-4-

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“378. Appeal in case of acquittal .-

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xxxxxxxxxxx

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(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.”

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On careful perusal, it is seen that the complaint is initiated by the complainant before the Saundatti Police Station not before the Magistrate directly and complaint is filed under Section 200 of Cr.P.C., therefore, the provision of Section 378(4) of Cr.P.C. would not attract to the appellant/complainant herein, as Section 378(4) of Cr.P.C. arises in a case of acquittal where a case is instituted upon complaint. In this view of the matter, it is essential to look at the definition of complaint, under Section 2(d) of Cr.P.C. is as follows :

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“2. Definitions :- xxxxxxxx

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(d) “complaint” means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has

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committed an offence, but does not include a police report.”

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Therefore, when the complaint is filed before

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the Police, which ends up in a police report cannot be termed as complaint, for the requirement of Section 378(4) of Cr.P.C. In the present case at the most, the complainant would be a victim as contemplated under Section 2(wa) of Cr.P.C., which reads as under :

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“2. Definitions :- xxxxxxx

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(wa)“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.

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Therefore, the present appeal as brought by the appellant/complainant under Section 378(4) of Cr.P.C. is not maintainable in law hence, the present appeal cannot not be entertained. However, the appellant is at liberty to approach the Court in accordance with law. If any such appeal or proceedings is filed, time spent

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before this Court in prosecuting the present appeal deserves to be considered leniently by the said Court.

Appeal is dismissed.

Sd/-

JUDGE

ckk

The Manager/Secretary, v. Basangouda S/O Viranagouda Kulkarni

Case brief

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What did the court decide?

The Manager/Secretary, v. Basangouda S/O Viranagouda Kulkarni

Case brief

What is this about?

What did the court decide?

What the court decided

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