MADHAVAN Vs. CHANDRAN NAIR

JUDGEMENT

(1.) The Complainant is the appellant. Complaint was filed alleging offences under S.417 and 500 read with S.34 of the Indian Penal Code.

(2.) The prosecution case is that A2 the Secretary of the Pullukulangara Service Cooperative Bank gave the complainant a certificate to the effect that there was no arrears due from him to the Bank, that later it was found to be false and that on account of it his nomination paper for contesting the election to the Bank was rejected. The Trial Court acquitted A1 and convicted A2. A2's appeal was allowed by the Sessions Judge, Alleppey.

(3.) The short point that arises for consideration is as to whether it was at all proper to have disposed of the appeal by the Sessions Judge without the complainant being on the party array. Admittedly toe complainant was not made a party in the appeal before the Sessions Court. S.385 Cr. P.C. provides the procedure for hearing appeals not dismissed summarily. S.384 provides for summary disposal of the appeals.- If the appellate Court does not dismiss the appeal summarily, it shall be the duty of the Court to issue notice to the appellant or his pleader or to such Officer as the State Government may appoint in that behalf. S.385(1)(iii) specifically provides that if the appeal is from the judgment of conviction in a case instituted upon complaint, notice shall be given to the complainant. Thus there cannot be any doubt that when an appeal is filed from a judgment of conviction in a case instituted upon complaint notice has to be given to the complainant. The salutary principle behind the provision is that the appeal should not be disposed of without hearing the complainant. Contention of A2 that it is the duty of the Court to issue notice and that he has nothing to do with it cannot at all be accepted. In the appeal memorandum the complainant has not been impleaded as one of the respondents. State alone is made the respondent. There may be cases where State may not have any interest at all in a private complaint and the appeal therefrom. Consequently Government Pleader may not take any interest in the matter. To avoid prejudice to the complainant it is really necessary that he should be impleaded in the appeal as the respondent. Filing appeal without the complainant on the party array as the respondent would really result in negation of justice so far as he is concerned. As he is the affected party, it is elementary that he should be heard in the appeal. The judgment of the Sessions Court cannot be sustained as the appeal was heard and disposed of without hearing the complainant.