BAHIDUL SK. Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This revisional application has been filed by the petitioner against an order dtd. 6/1/2020 passed by the Learned Sessions Judge in Criminal Appeal No. 2/2018 arising out of judgment and order of acquittal dtd. 5/12/2017 passed by the Learned Chief Judicial Magistrate, Malda in connection with G.R. Case No. 315 of 2008 arising out of Kaliachak Police Station Case No. 56 of 2008 dtd. 10/2/2008 under Sec. 420 of the Indian Penal Code, 1860, whereby the learned Sessions Judge heard an appeal and dismissed the said appeal as not maintainable because right to prefer an appeal under Sec. 372 of the Criminal Procedure Code lies with the victim and none else. Further view of the Learned Sessions Judge was that case in hand relates to an offence under Sec. 420 of IPC, the complainant cannot be termed as 'victim' and accordingly the applicability of Sec. 372 of Cr.P.C. does not arise at all.

(2.) The case of the petitioner, in brief, is that on 3/4/2005 the petitioner and his brother Aushed Sk entered into an agreement for sale with the opposite party no. 2 to purchase his share in the property in full and final consideration amount of Rs.2,50,000.00 in respect of two plot nos. 204 and 229 of Mouza Mosimpur measuring an area 2 1/2 Katas of land. Out of the said amount, the petitioner and his brother have paid a sum of Rs.71,000.00 as advance on the date of execution of the said agreement on 3/4/2005 and a further sum of Rs.50,000.00 on 6/9/2005. It was the condition that within six months from the date of execution of the said agreement for sale, the opposite party no. 2 will execute a registered sale deed in favour of the petitioner and his brother subject to payment of remaining balance consideration amount. Opposite party no. 2 did not register the sale deed in respect of the said property to them rather he cheated the appellant and his brother by selling the said property to a third party. Accordingly, the petitioner moved an application under Sec. 156 (3) of the Criminal Procedure Code (hereinafter referred to as 'Cr.P.C.') before the learned Chief Judicial Magistrate, Malda and on the basis of direction passed by the learned Chief Judicial Magistrate, Malda an FIR was registered vide Kaliachak Police Station Case No. 56 of 2008 dtd. 10/2/2008 under Sec. 420/34 of the Indian Penal Code, 1860 against the opposite party no. 2. After completion of investigation, a charge sheet was submitted, charge was framed under Sec. 420 IPC and trial commenced when he pleaded not guilty and claimed to be tried. Prosecution had examined as many as five witnesses and exhibited number of documents in course of trial.

(3.) No witnesses adduced from the side of the defence. However, the learned Judge, after marshalling and appreciation of the evidence of the prosecution, finally acquitted the accused/opposite party no. 2 from the charge under Sec. 420 of the Indian Penal Code in terms of Sec. 248 (1) of the Code of Criminal Procedure, 1973 vide order dtd. 5/12/2017. Petitioner, being dissatisfied, had filed an appeal before the Learned Sessions Judge, Malda under Sec. 372 of the Cr.P.C. and after hearing, learned Sessions Judge dismissed the same on 6/1/2020 on the ground that the appeal is not maintainable as complainant does not come within the definition of 'Victim' under Sec. 2 (wa) of the Cr.P.C. and cannot file appeal under Sec. 372 of the Cr.P.C.