Sunita @ Santoshini Behera Vs State of Odisha

Heard learned counsel for the Petitioner as well as learned counsel for the State-Opposite Party No.1. Perused the application as well as the prayer made therein.

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The present leave application has been filed at the instance of the Complainant in 1.C.C. No.96 of 2020 challenging the judgment of acquittal dated 02.12.2023 passed by the learned J.M.F.C. (LR & LTV), Berhampur in 1.C.C. No.96 of 2020, corresponding to Trial No.57 of 2023.

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On the basis of the complaint lodged by the PetitionerComplainant, as the victim of fraud, alleging commission of offence punishable under Sections 406/417/420/506 of I.P.C., the

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Page 1 of 4.

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Accused-Opposite Party No.2 faced trial.

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On a plain reading of the complaint petition, which has been filed as Annexure-1 to the application, it reveals that the Complainant claiming herself to be a victim of fraud committed by Opposite Party No.2-Accused, approached the learned J.M.F.C. (LR & LTV), Berhampur, Ganjam alleging commission of offences as has been indicated hereinabove.

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Perused the compliant petition which reveals that the Petitioner-Complainant has been defrauded to the tune of Rs.7,60,000/- by the Accused-Opposite Party No.2. Thus, it appears that the Complainant is the victim in the complaint case.

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The victim as has been defined in Code of Criminal Procedure under Section 2(wa) which provides that “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. The aforesaid provision was incorporated in Cr.P.C. by virtue of an amendment by Act 5 of 2009 w.e.f. 31.12.2009.

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The Petitioner-Complainant is also the victim in the complaint case. Being aggrieved by the judgment of acquittal of the trial court, the Petitioner has approached this Court seeking leave to appeal under Section 378(4) & (5) of the Cr.P.C. In the aforesaid context, this Court examines the proviso to Section 372 of Cr.P.C. Section 372 of Cr.P.C. which was amended in the year

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Page 2 of 4.

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2009 thereby a proviso was incorporated conferring a right on the victim to prefer an appeal against an order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court. Thus, a plain reading of the proviso to Section 372 of Cr.P.C. clearly indicates that a right has been conferred by virtue of the statute on the victim to prefer an appeal against an order of acquittal.

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Keeping in view the aforesaid provisions contained in the Cr.P.C., this Court examines the factual background of the present case.

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On a careful analysis of the background facts of the present case, it appears that the Petitioner-Complainant is a victim as defined under Section 2(wa) of the Cr.P.C. Thus, the Petitioner should have exercised his right to appeal as has been conferred by the proviso to Section 372 of the Cr.P.C. Instead, the Petitioner has been filed this application seeking leave under Section 378(4) & (5) of the Cr.P.C.

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In view of the aforesaid analysis, this Court is of the view that the present leave application is not maintainable. While disposing of the present leave application, this Court grants liberty to the Petitioner to approach the Appellate Court by filing an appeal under the proviso to Section 372 of the Cr.P.C. along with an application for condonation of delay, if any. In the event any such application for condonation of delay is filed, the learned

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Appellate Court shall consider the same liberally and condone the delay

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