# Smt. Kalpana Gupta v. State of U.P. & Anr. Opp. Parties

- **Citation:** (2023) 1 ILRA 990
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-16
- **Case number:** Application u/s 378 No. 262 of 2017
- **Bench:** Mohd. Faiz Alam Khan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-kalpana-gupta-v-state-of-u-p-anr-opp-parties-49691
- **Pages:** 17

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 244, 246, 313, 377,
378, 378(1)(a), 378(1) (b), 378(2)(b),
378(4), 386, 397, 398, 399 & 401(5), -
Indian Penal Code, 1860 - Sections -
120B, 405 & 406 : - Application for Special
leave to Appeal - appeal for enhancement of
the sentence - complaint of criminal breach of
trust - maintainability of appeal/application -
whether
the
complainant
can
file
an
appeal/special leave to appeal for enhancement
of sentence - court held that, the complainant of
a complaint case do not have any right to
challenge inadequacy of the sentence passed by
trial court - he/she can challenge the same by
filing
of
a
criminal
revision
before
the
appropriate
court
-
thus,
the
instant
appeal/application for grant of special leave is
not maintainable - rejected accordingly.
(Para - 27, 31, 35, 36)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 244, 246, 313, 377,
378, 378(1)(a), 378(1) (b), 378(2)(b),
378(4), 386, 397, 398, 399 & 401 - Indian
Penal Code, 1860 - Sections 120B, 405 &
406 - Application for Special leave to Appeal -
appeal against acquittal - complaint of criminal
breach of trust - appreciation of evidence -
respondent no. 3 & 4 died during pendency of
the instant application thus, proceedings against
them are abated - held, having perused the
judgment of trial court in the background of the
case as well as keeping settled legal position in
this case, this court is of the view that the
burden
is
always
on
the
prosecution/complainant to prove the guilt of
accused person(s) beyond reasonable doubt and
if on a reasonable appreciation of evidence two
views appears to be possible, then the view
which is favourable to the accused persons(s)
should be adopted - accordingly, the judgment
of the court below is called for no interference -
consequently, Special leave to Appeal is
rejected.(Para - 44, 45, 46)

Appeal Dismissed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,813 of 58,050. This is a partial read: ask again with offset=39813 for what follows._

990 INDIAN LAW REPORTS ALLAHABAD SERIES
same to the Jail Superintendent concerned
in terms of this judgment.
----------
(2023) 1 ILRA 990
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 16.01.2023

BEFORE

THE HON'BLE MOHD. FAIZ ALAM KHAN, J.

Application u/s 378 No. 262 of 2017
and
Application u/s 378 No. 261 of 2017

Smt. Kalpana Gupta ...Applicant
Versus
State of U.P. & Anr. ...Opp. Parties

Counsel for the Applicant:
Rajesh Kumar Srivastava, Praveen Singh

Counsel for the Opp. Parties:
Govt. Advocate, Bhaskar Prasad Pandey, Manoj
Sahu, Sandeep Srivastava

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 244, 246, 313, 377,
378, 378(1)(a), 378(1) (b), 378(2)(b),
378(4), 386, 397, 398, 399 & 401(5), -
Indian Penal Code, 1860 - Sections -
120B, 405 & 406 : - Application for Special
leave to Appeal - appeal for enhancement of
the sentence - complaint of criminal breach of
trust - maintainability of appeal/application -
whether
the
complainant
can
file
an
appeal/special leave to appeal for enhancement
of sentence - court held that, the complainant of
a complaint case do not have any right to
challenge inadequacy of the sentence passed by
trial court - he/she can challenge the same by
filing
of
a
criminal
revision
before
the
appropriate
court
-
thus,
the
instant
appeal/application for grant of special leave is
not maintainable - rejected accordingly.
(Para - 27, 31, 35, 36)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 244, 246, 313, 377,
378, 378(1)(a), 378(1) (b), 378(2)(b),
378(4), 386, 397, 398, 399 & 401 - Indian
Penal Code, 1860 - Sections 120B, 405 &
406 - Application for Special leave to Appeal -
appeal against acquittal - complaint of criminal
breach of trust - appreciation of evidence -
respondent no. 3 & 4 died during pendency of
the instant application thus, proceedings against
them are abated - held, having perused the
judgment of trial court in the background of the
case as well as keeping settled legal position in
this case, this court is of the view that the
burden
is
always
on
the
prosecution/complainant to prove the guilt of
accused person(s) beyond reasonable doubt and
if on a reasonable appreciation of evidence two
views appears to be possible, then the view
which is favourable to the accused persons(s)
should be adopted - accordingly, the judgment
of the court below is called for no interference -
consequently, Special leave to Appeal is
rejected.(Para - 44, 45, 46)

Appeal Dismissed. (E-11)

List of Cases cited:

1. Subhash Chand Vs St. (Delhi Administration),
MANU/SC/0016/2013,

2. Parvinder Kansal Vs The St. of NCT of Delhi &
anr., (2020) 19 SCC 496,

3. T. Jayarajan Vs P.R. Muhammed & ors.,
MANU/KE/0758/1999,

4.
Sahab
Singh
Vs
St.
of
Har.,
MANU/SC/0224/1990,

5. Darshan Lal v. Indra Kumar Mehta, 1980 All
LJ 217,

6. Pratibha Rani Vs Suraj Kumar & ors.,
MANU/SC/0090/1985,

7.
Topandas
Vs
The
St.
of
Bombay,
MANU/SC/0032/1955,

8.
Parveen
Vs
The
St.
of
Har.,
MANU/SC/1190/2021,

9. Ajmer Singh Vs St. of Pun., 1953 SCR 418,

10. Sanwat Singh & ors.Vs St. of Raj., AIR 1961
SC, 715,
1 All. Smt. Kalpana Gupta Vs. State of U.P. & Anr.
991
11. Sadhu Sharan Singh Vs St. of U.P. & ors.,
2016 Cr.L.J. 1908.

(Delivered by Hon'ble Mohd. Faiz Alam
Khan, J.)

1.

Heard
Shri
Rajesh
Kumar
Srivastava,
learned
counsel
for
the
applicant/ appellant, Ms. Sonal Pandey,
learned counsel for private respondent no.2
in application under Section 378 No. 262 of
2017 and for respondent no.2 and 5 in
Application under Section 378 No. 261 of
2017 as well as learned AGA for the State
and perused the record.

2. At the outset learned counsel for
the applicant/
appellant
submits that
respondent no.3- Awadhesh Chandra Gupta
and respondent no.4- Smt. Dhaneshwari
Gupta had died during the pendency of the
instant
application/
appeal
and
the
proceedings against them be abated.

3. Ms. Sonal Pandey, learned counsel
appearing for respondents no. 2 to 5 in A,
378 No. 261 of 2017 does not dispute this
fact,
therefore
the
proceedings
of
application under Section 378 No. 261 of
2017 is abated so far as the respondent
no.3-
Awadesh
Chandra
Gupta
and
respondent no.4- Smt. Dhaneshwari Gupta
are concerned.

4. Both above placed applications
moved under Section 378(4) Cr.P.C. are
connected with the same complaint case,
whereby the accused persons / respondent
nos.2 to 6 of Criminal Appeal No.262 of
2017 have been acquitted of all the
charges and accused '' Santosh Kumar
Gupta' has been acquitted of charge
framed under Section 120B I.P.C. and
convicted for offence under Section 406
I.P.C. and therefore for the sake of
convenience both these applications are
being disposed of by this common order.

5. Application under Section 378
No. 261 of 2017 as well as 262/2017 have
been preferred by the complainant Smt.
Kalpana Gupta requesting to grant special
leave to appeal against the judgment and
order dated 27.4.2017 passed by the
Special
Chief
Judicial
Magistrate,
Lucknow in Complaint Case No. 9/2016,
Smt. Kalpana Gupta Vs. Santosh Kumar
Gupta and six others whereby only
accused Santosh Kumar Gupta was
convicted for committing offence under
Section
406
IPC
and
sentenced
accordingly and acquitted for charge
under Section 120B I.P.C. and other
accused persons, namely, Pradeep Kumar
Gupta
@
Tinkoo,
Smt.
Raj
Km.,
Awadhesh
Chandra
Gupta,
Smt.
Dhaneshwari @ Vandana and Smt. Saroj
were acquitted from the charges framed
under Section 406/120B I.P.C.

6. Accused Shri Ram Gupta had
died during the course of trial and
proceedings against him were abated by
the trial court, while as stated earlier
accused Awadhesh Chandra Gupta and
Smt. Dhaneshwari Gupta had died during
the pendency of the instant proceedings
and proceedings of this case have been
abated against them.

7. Brief facts necessary for disposal of
the instant proceedings, as are emerging
from the record, are that the complainant
Smt. Kalpana Gupta had filed a complaint
before the Judicial Magistrate, Lucknow
stating therein that the marriage of the
complainant was solemnized with accused-
Santosh Kumar Gupta on 29.11.1989 in
accordance with the Hindu Rituals and at
the time of her marriage her relatives and
992 INDIAN LAW REPORTS ALLAHABAD SERIES
other persons had given gifts for her use
and a list of the same has been enclosed
with the complaint.

8. It is further stated that all the gifts
which were given to the complainant were
entrusted in the custody of accused persons
by the family members of the complainant
and the accused persons had promised that
they will handover the gifts to the
complainant, however, after few days of the
marriage, the behaviour of the accused
persons
had
changed
towards
the
complainant and accused no.1 (husband)
started pressurizing the complainant to give
all her salary to him and by pressurizing the
complainant had withdrawn Rs. 7,600/-
from her Bank Account and had given the
same to the accused no. 5 and 6 for the
purpose of construction of their house at
Khurram Nagar, Lucknow.

9. It is also stated in the complaint
that in the year 1991 on the occasion of
Dashehra Festival all accused persons
demanded Rs. 50,000/- from her and on
refusal the complainant was not given food
for many days and all her jewellary and
clothes and other gifts given in the
marriage were taken by the accused
persons with the promise that they will
return these gifts, clothes and jewelry till
28.2.1990 but they instead of returning the
above
mentioned
articles
to
the
complainant misappropriated the same
which was ''Stridhan' of the complainant
and they are using the same illegally.

10. It is also stated that a notice was
given to the accused persons by the
applicant for returning all the items of her
''Stridhan' but accused persons did not
return her ''Stridhan' and therefore all
accused persons be summoned in the court
and punished.

11. The trial court after recording the
statement of complainant and her witnesses
summoned the accused persons to face trial
under Section 406 IPC read with 120-B
IPC.

12. On the appearance of the accused
persons the evidence of the complainant
under Section 244 Cr.P.C. was recorded,
wherein the statement of Smt. Kalpana
Gupta (complainant) was recorded and in
documentary
evidence
following
documentary
evidences
were
also
produced:-

I. Notice sent by Shri C.B. Singh ,
Advocate on behalf of the complainant-
Ext. Ka-1.

II. The acknowledgment of date
10.2.1992- Ext. Ka-2.

III. Copy of notice sent by Shri C.B.
Singh, Advocate - Ext. Ka-3.

IV. The copy of acknowledgment -
Ext. Ka-4.

V. Copy of the notice dated 29.4.2012-
Ext. Ka-5.

VI. Copy of notice dated 7.5.91- Ext.
Ka-6.

VI. Copy of notice dated 1.5.1992 Ext.
Ka-7.

VII. Copy of receipt of registry Ext. Ka-9

VIII. Copy of receipt of registry dated
24.10.1989 Ext. Ka-10.

IX. Copy of receipt of registry dated
23.11.1989 Ext. Ka-11.

X. Copy of receipt of registry dated
29.11.1989, 24.11.1989, 27.11.1989 and
31.5.2015 Ext. Ka-12, Ka- 13, Ka-14 and
Ka-15.

XI. List of articles given as ''Stridhan'
Ext. Ka-16.

XII. Complaint petition Ext.Ka-17.

13. Apart from the complainant whose
statement was recorded under Section 244
1 All. Smt. Kalpana Gupta Vs. State of U.P. & Anr.
993
Cr.P.C. as P.W.1. The statement of the
prosecution witness no.2- Sanjay Kumar
Gupta and P.W.3- Sunil Kumar Gupta was
also recorded under Section 244 Cr.P.C.

14. The charges under Section 406
IPC and Section 120-B IPC were framed
against all the accused persons, to which
the accused persons denied and claimed
trial.

15. Under Section 246 Cr.P.C. the
statement of P.W. 1- Smt. Kalpana, P.W. 2-
Sanjay Kumar Gupta as well as P.W. 3-
Sunil Kumar Gupta was recorded.

16. After conclusion of the evidence
of the complainant the statement of the
accused persons was recorded under
Section 313 of the Cr.P.C. wherein they
denied the evidence presented by the
complainant and had also produced the
defence witness no.1 - Santosh Kumar
Gupta and defence witness no.2- Arjun
Singh as defence witnesses.

17. The trial court after appreciating
the evidence available on record came to
the conclusion that the complainant is able
to prove its case beyond reasonable doubt
only with regard to the accused Santosh
Kumar Gupta for committing offence under
Section 406 IPC only and convicted him
only under Section 406 IPC while the other
accused persons were acquitted of all the
charges framed against them and accused
Santosh Kumar Gupta was also acquitted of
the charge under Section 120B I.P.C.

18. Being aggrieved by the impugned
judgment and order the complainant has
preferred instant application under Section
378(4) Cr.P.C. requesting to grant special
leave to appeal in order to challenge the
impugned judgment and order.

19. Shri Rajesh Kumar Srivastava,
learned counsel for the complainant/
applicant vehemently submits that the trial
court has committed manifest illegality in
appreciating the evidence available on
rerecord and has acquitted the accused
persons of the charges framed against them
while it was proved beyond reasonable
doubt that gifts items (Stridhan) of the
complainant was given in the custody of all
accused
persons
and
they
have
misappropriated and converted the same to
their use and therefore the offence under
Section 406 I.P.C. and Section 120-B IPC
was proved beyond reasonable doubt.

20. It is further submitted that all the
accused
persons
had
forcibly
took
possession of her ''Stridhan' and ousted her
from her matrimonial home.

21. It is also submitted that the case of
the complainant was proved by reliable
evidence of herself as well as of her two
witnesses, namely, P.W.2- Sanjay Kumar
Gupta and P.W. 3- Sunil Kumar Gupta but
the trial court appears to have given much
weightage to the defence witnesses.

22. It is also submitted that the trial
court has wrongly misinterpreted and
passed judgment on the basis of surmises
and conjectures, thus the complainant/
applicant be granted special leave to appeal
in order to challenge the impugned
judgment and order passed by the trial
court.

23. Ms. Sonal Pandey, learned
counsel appearing for the respondent no. 2
in Application under Section 378 No. 262
of 2017 and for respondent no.2 and 5 in
Application under Section 378 No. 261 of
2017, vehemently submits that the trial
court has committed no illegality so far as
994 INDIAN LAW REPORTS ALLAHABAD SERIES
the
acquittal
of
the
respondents
is
concerned
as
the
complianant
has
miserably failed to prove its case beyond
reasonable doubt.

24. It is further submitted that it was
evident from record that without there
being any basis, the whole family of the
husband Santosh Kumar Gupta has been
roped in while even if the case of the
prosecution is believed for a moment,
according to her own version the ''Stridhan'
was entrusted to the husband and therefore
there is no illegality so far as the acquittal
of other respondents is concerned.

25. Perusal of the record would reveal
that by filing application for grant of
special leave bearing no.262 of 2017, a
request has been made to grant special
leave to appeal to challenge the order of
acquittal of respondent Santosh Kumar
Gupta pertaining to offence under Section
120B I.P.C. with further prayer to sentence
him with full imprisonment as provided
under Section 406 I.P.C. wherein the
respondent Santosh Kumar Gupta has been
convicted by the trial court and by filing
the application under Section 378(4)
Cr.P.C. bearing no.261 of 2017, a request
has been made to grant special leave to
appeal to challenge the judgment and order
of the acquittal of the trial court with regard
to the other accused persons/respondent
nos.2 to 6 as they have been acquitted by
the trial court of the charges framed against
them under Sections 406/120B I.P.C.

26. At the outset I would prefer to
deal with the issue as to whether the instant
appellant who is also a complainant of a
complaint case may file application under
Section 378(4) Cr.P.C. for grant of leave to
appeal
for
enhancement
of
sentence
imposed by the trial court with regard to
the accused Santosh Kumar Gupta for
committing offence under Section 406
I.P.C. as the issue with regard to his
acquittal under Section 120B I.P.C. as well
as of the other accused persons shall be
dealt with later at appropriate stage of this
order.

27. Perusal of the record would reveal
that the respondent Santosh Kumar Gupta
has been convicted by the trial court for
committing offence under Section 406
I.P.C. and has been sentenced with three
months' rigorous imprisonment alongwith
fine. The question, therefore, is whether the
complainant of the complaint case can file
an appeal or special leave to appeal for
enhancement of sentence. To understand
this controversy, it is necessary to have a
look at Section 378 of the Code. It reads as
under:-

378. Appeal in case of acquittal.

(1) Save as otherwise provided in subsection (2) and subject to the provisions of
sub-sections (3) and (5), -

(a) the District Magistrate may, in any
case, direct the Public Prosecutor to
present an appeal to the Court of Session
from an order of acquittal passed by a
Magistrate in respect of a cognizable and
non-bailable offence;

(b) the State Government may, in any
case, direct the Public Prosecutor to
present an appeal to the High Court from
an original or appellate order of acquittal
passed by any Court other than a High
Court [not being an order under clause
(a)] [or an order of acquittal passed by the
Court of Session in revision.]

(2) If such an order of acquittal is
passed in any case in which the offence has
been investigated by the Delhi Special
Police Establishment constituted under the
1 All. Smt. Kalpana Gupta Vs. State of U.P. & Anr.
995
Delhi Special Police Establishment Act,
1946 (25 of 1946), or by any other agency
empowered to make investigation into an
offence under any Central Act other than
this Code, [the Central Government may
also direct the Public Prosecutor to present
an appeal], subject to the provisions of subsection
(3),
also
direct
the
Public
Prosecutor to present an appeal.

(a) to the Court of Session, from an
order of acquittal passed by a Magistate in
respect of a cognizable and non-bailable
offence;

(b) to the High Court from an
original
or
appellate
order
of
an
acquittal passed by any Court other than
a High Court [not being an order under
clause (a)] or an order of acquittal
passed by the Court of Session in
revision.]

(3) No appeal under sub-section (1)
or sub-section (2) shall be entertained
except with the leave of the High Court.

(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.

(5) No application under sub-section
(4) for the grant of special leave to
appeal from an order of acquittal shall be
entertained by the High Court after the
expiry
of
six
months,
where
the
complainant is a public servant, and sixty
days in every other case, computed from
the date of that order of acquittal.

(6) If in any case, the application
under sub-section (4) for the grant of
special leave to appeal from an order of
acquittal is refused, no appeal from that
order of acquittal shall lie under sub-
section (1) or under sub-section (2).

28. Hon'ble Supreme Court in the
case of Subhash Chand Vs. State (Delhi
Administration);
MANU/SC/0016/2013
has opined as under:-

"15. At the outset, it must be noted that
as per Section 378(3) appeals against
orders of acquittal which have to be filed in
the High Court under Section 378(1)(b)
and 378(2)(b) of the Code cannot be
entertained except with the leave of the
High Court. Section 378(1)(a) provides
that, in any case, if an order of acquittal is
passed by a Magistrate in respect of a
cognizable and non-bailable offence the
District Magistrate may direct the Public
Prosecutor to present an appeal to the
court of Sessions. Sub- Section (1)(b) of
Section 378 provides that, in any case, the
State Government may direct the Public
Prosecutor to file an appeal to the High
Court from an original or appellate order
of acquittal passed by any court other than
a High Court not being an order under
clause (a) or an order of acquittal passed
by the Court of Session in revision. SubSection(2) of Section 378 refers to orders of
acquittal passed in any case investigated by
the Delhi Special Police Establishment
constituted under the Delhi Special Police
Establishment Act, 1946 or by any other
agency empowered to make investigation
into an offence under any Central Act other
than the Code. This provision is similar to
sub-section(1) except that here the words
''State Government' are substituted by the
words ''Central Government'.

16. If we analyse Section 378(1)(a) &
(b), it is clear that the State Government
cannot direct the Public Prosecutor to file
an appeal against an order of acquittal
passed by a Magistrate in respect of a
cognizable
and
non-bailable
offence
because of the categorical bar created by
Section 378(1)(b). Such appeals, that is
996 INDIAN LAW REPORTS ALLAHABAD SERIES
appeals against orders of acquittal passed
by a Magistrate in respect of a cognizable
and non-bailable offence can only be filed
in the Sessions Court at the instance of the
Public Prosecutor as directed by the
District Magistrate. Section 378(1)(b) uses
the words "in any case" but leaves out
orders of acquittal passed by a Magistrate
in respect of a cognizable and non-bailable
offence from the control of the State
Government. Therefore, in all other cases
where orders of acquittal are passed
appeals can be filed by the Public
Prosecutor as directed by the State
Government to the High Court.
17. Sub-Section (4) of Section 378 makes
provision for appeal against an order of
acquittal passed in case instituted upon
complaint. It states that in such case if the
complainant makes an application to the
High Court and the High Court grants
special leave to appeal, the complainant
may present such an appeal to the High
Court. This sub-section speaks of ''special
leave' as against sub-section (3) relating to
other appeals which speaks of ''leave'.
Thus, complainant's appeal against an
order of acquittal is a category by itself.
The complainant could be a private person
or a public servant. This is evident from
sub-section (5) which refers to application
filed for ''special leave' by the complainant.
It grants six months period of limitation to
a complainant who is a public servant and
sixty days in every other case for filing
application. Sub- Section (6) is important.
It states that if in any case complainant's
application for ''special leave' under subSection (4) is refused no appeal from order
of acquittal shall lie under sub-section (1)
or under sub- section (2). Thus, if ''special
leave' is not granted to the complainant to
appeal against an order of acquittal the
matter must end there. Neither the District
Magistrate not the State Government can
appeal against that order of acquittal. The
idea appears to be to accord quietus to the
case in such a situation.
18. Since the words ''police report' are
dropped from Section 378(1) (a) despite the
Law Commission's recommendation, it is
not necessary to dwell on it. A police report
is defined under Section 2(r) of the Code to
mean a report forwarded by a police officer
to a Magistrate under sub-section (2) of
Section 173 of the Code. It is a culmination
of investigation by the police into an
offence after receiving information of a
cognizable or a non- cognizable offence.
Section 2(d) defines a complaint to mean
any allegation made orally or in writing to
a Magistrate with a view to his taking
action under the Code, that some person,
whether known or unknown has committed
an offence, but does not include a police
report. Explanation to Section 2(d) states
that a report made by a police officer in a
case which discloses after investigation, the
commission of a non- cognizable offence
shall be deemed to be a complaint, and the
police officer by whom such report is made
shall be deemed to be the complainant.
Sometimes investigation into cognizable
offence conducted under Section 154 of the
Code may culminate into a complaint case
(cases under the Drugs & Cosmetics Act,
1940). Under the PFA Act, cases are
instituted on filing of a complaint before
the Court of Metropolitan Magistrate as
specified in Section 20 of the PFA Act and
offences under the PFA Act are both
cognizable
and non-cognizable.
Thus,
whether a case is a case instituted on a
complaint depends on the legal provisions
relating to the offence involved therein. But
once it is a case instituted on a complaint
and an order of acquittal is passed,
whether the offence be bailable or non-
bailable, cognizable or non-cognizable, the
complainant can file an application under
1 All. Smt. Kalpana Gupta Vs. State of U.P. & Anr.
997
Section 378(4) for special leave to appeal
against it in the High Court. Section 378(4)
places no restriction on the complainant.
So far as the State is concerned, as per
Section 378(1)(b), it can in any case, that is
even in a case instituted on a complaint,
direct the Public Prosecutor to file an
appeal to the High Court from an original
or appellate order of acquittal passed by
any court other than High Court. But there
is, as stated by us hereinabove, an
important
inbuilt
and
categorical
restriction on the State's power. It cannot
direct the Public Prosecutor to present an
appeal from an order of acquittal passed by
a Magistrate in respect of a cognizable and
non-cognizable offence. In such a case the
District Magistrate may under Section
378(1)(a) direct the Public Prosecutor to
file an appeal to the Session Court. This
appears to be the right approach and
correct interpretation of Section 378 of the
Code."

29. Thus, under Section 378(4) Cr.P.C. the
complainant has been given a right to seek
special leave to appeal from the High Court
to file an appeal to challenge a judgment of
acquittal. Section 378(1)(a) has only
permitted the District Magistrate, in any
case, to direct the Public Prosecutor to
present an appeal to the Court of Session
from an order of acquittal passed by a
Magistrate in respect of a cognizable and
non-bailable offence. This provision was
introduced whereunder an appeal against an
order of acquittal could be filed in the
Sessions
Court.
Such
appeals
were
restricted to orders passed by a Magistrate
in cognizable and non-bailable offences.
Section 378(1)(b) specifically and in clear
words has placed a restriction on the State's
right to file such appeals. It states that the
State Government may, in any case, direct
the Public Prosecutor to present an appeal
to the High Court from an original or
appellate order of acquittal passed by any
court other than a High Court not being an
order under clause (a) or an order of
acquittal passed by the Sessions Court in
revision. Thus, the State Government
cannot present an appeal against an order of
acquittal passed by a Magistrate in respect
of a cognizable and non-bailable offence
and complainant of a complaint case may
file appeal only against an order of
acquittal.

30. At this juncture Section 377 of the
Cr.P.C. is also required to be considered
and the same is reproduced as under:-

"377. Appeal by the State Government
against sentence.

(1) Save as otherwise provided in sub-
section (2), the State Government may, in
any case of conviction on a trial held by
any Court other than a High Court, direct
the Public Prosecutor to present an appeal
to the High Court against the sentence on
the ground of its inadequacy.

(2) if such conviction is in a case in
which the offence has been investigated by
the Delhi Special Police Establishment,
constituted under the Delhi Special Police
Establishment Act, 1946 (25 of 1946 ) or by
any other agency empowered to make
investigation into an offence under any
Central Act other than this Code, 1 the
Central Government may also direct] the
Public Prosecutor to present an appeal to
the High Court against the sentence on the
ground of its inadequacy.

(3) When an appeal has been filed
against the sentence on the ground of its
inadequacy, the High Court shall not
enhance the sentence except after giving to
the accused a reasonable opportunity of
showing cause against such enhancement
and while showing cause, the accused may
998 INDIAN LAW REPORTS ALLAHABAD SERIES
plead for his acquittal or for the reduction
of the sentence."

31. A plain reading of this Section
would reveal that a power has been given to
the State Government to file an appeal
against the sentence imposed by trial court
with regard to ''any case' in the manner
provided under Section 377 Cr.P.C. Thus, this
Section empowers the State Government to
file an appeal against inadequacy of sentence
before the District Court or the High Court as
the case may be. It is also clear from this
Section that such appeal against adequacy
sentence may be filed irrespective of the fact
that the prosecution was on the basis of police
charge sheet or on the basis of private
complaint. Therefore, the above discussion
would sufficiently demonstrate that the
remedy of challenging the inadequacy of the
sentence lies with the State Government or
the Central Government or the District
Magistrate as the case may be. In this regard,
it is fruitful to have a glance on the law laid
down by Hon'ble the Supreme Court in the
case of Parvinder Kansal Vs. The State of
NCT of Delhi and another; (2020) 19 SCC
496, wherein it has specifically opined that a
victim as defined under Section 2(wa) could
only file an appeal as provided in the Proviso
of Section 372 Cr.P.C. against the order of
acquittal, conviction for lesser offence and for
imposition of inadequate compensation and a
victim has no right to appeal for enhancement
of sentence under Section 372 Cr.P.C. Thus,
in the considered opinion of this Court, the
complainant of the complaint case also do not
have any right to challenge inadequacy of
sentence passed by the trial court while
convicting the accused for any offence in
complaint case.

32. Now the question will arise as to
what remedy would be available to an
aggrieved complainant of a complaint case
who is aggrieved by inadequacy of
sentence imposed by the trial court and
neither the District Magistrate or the State
Government as the case may be has
initiated any proceeding by filing appeal
under Section 377 Cr.P.C. for enhancement
of sentence. In this regard a single Bench
judgment of Hon'ble Kerela High Court
passed
in
T.
Jayarajan
Vs.
P.R.
Muhammed
and
Ors;
MANU/KE/0758/1999 would be relevant
wherein learned single Judge of the Kerela
High Court while referring to many
authorities and also considering Section
397, 398, 399, 401 and 386 Cr.P.C. as well
as after considering the law laid down by
Hon'ble the Supreme Court in the case of
Sahab Singh Vs. State of Haryana;
MANU/SC/0224/1990 and by this Court in
Darshan Lal v. Indra Kumar Mehta
1980 All LJ 217, opined as under:-

"14. It is clear from the above rulings
of the various High Courts and the
Surpeme Court that the failure of the State
Government to prefer appeal before the
High Court challenging inadequacy of the
sentence under Section 377 of the Cr. P.C.
will not preclude the jurisdiction of the
High Court and Sessions Court to consider
the inadequacy of the sentence on the basis
of the revision filed by the complainant or
the interested party challenging inadequacy
of sentence except in cases such revisions
are barred under Sub-section (4) of Section
401 of the Cr. P.C. Therefore the decision of
the Division Bench of the Madras High
Court reported in 1984 Cri JJ 243 (In re:
Krishnamoorthy) to the effect that the High
Court has no jurisdiction to consider
whether the sentence is inadequate in a
revision filed by the complainant in a
private complaint, is not good law to be
followed in view of the authoritative rulings
of the apex Court. Hence the order passed
1 All. Smt. Kalpana Gupta Vs. State of U.P. & Anr.
999
by the learned Sessions judge relying upon
the above decision of the Madras High
Court dismissing the revision petition on
the ground that it being filed by the
complainant challenging the inadequacy of
the sentence is not maintainable, is also not
sustainable."

33. In Sahab Singh (Supra), Hon'ble
the Supreme Court has opined as under:-

"The failure on the part of the State
Government to prefer an appeal does not,
however, preclude the High Court from
exercising suo motu power of revision
under Section 397 read with Section 401 of
the Code since the High Court itself is
empowered to call for the record of the
proceeding of any Court subordinate to it.
Sub-section (4) of Section 401 operates as
a bar to the party which has a right to
prefer an appeal but has failed to do so but
that sub-section cannot stand in the way of
the High Court exercising revisional
jurisdiction suo motu. But before the High
Court exercises its suo motu revisional
jurisdiction to enhance the sentence, it is
imperative that the convict is put on notice
and is given an opportunity of being heard
on the question of sentence either in person
or through his advocate."

34. A Division Bench of this Court in
the case of Darshan Lal (Supra) was also
of the opinion reproduced as under:-

"According
to
Section
397(1)
a
Sessions Judge can call for and examine
the record of any proceedings of any
inferior criminal Court situate within his
jurisdiction for satisfying himself as to the
correctness, legality or propriety of any
finding, sentence or order. The grievance of
the applicant in the revision filed by him
before
the
trial
Court
was
wholly
inadequate. The Sessions Judge could,
therefore, examine that question in view of
the powers conferred on him by Sub-section
(1) of Section 397 of the Code of Criminal
Procedure. Further, under Sub-section (1)
of Section 399 of Sessions Judge, while
dealing with a revision, can exercise all or
any of the powers which may be exercised
by the High Court under Sub-section (1) of
Section 401. By this it would follow that if
the High Court, while dealing with a
revision can enhance the sentence, the
Sessions Judge can also do it. According to
Sub-section (1) of Section 401 the High
Court, while dealing with a revision, can
exercise any of the powers conferred on an
appellate Court, by Section 386 of the
Code. According to Clause (c) of Section
386 of the Code, the appellate Court can,
in an appeal for enhancement of sentence,
alter the nature or the extent of the
sentence so as to enhance or reduce the
same. In view of this provision contained in
Section 386, Cr. P.C. it should be held that
the High Court, while dealing with a
revision, can enhance the sentence. As
already stated earlier the powers of a
Sessions Judge, while dealing with a
revision, are the same as that of the High
Court. Since the High Court can enhance
the sentence while dealing with the
revision, the Sessions Judge can also do so.
"

35. Thus, having regard to the law
placed herein before, it would be clear that
if the State Government is not coming
forward
to
challenge
inadequacy
of
sentence passed in a complaint case, the
complainant of that case would not be
remediless and he can challenge the same
by filing criminal revision before the
appropriate court and the revisional court
may exercise any of the power conferred
under Section 386 Cr.P.C. by virtue of
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
Section 401 Cr.P.C. subject to the limitation
set forth under Sub Section 5 of Section
401 Cr.P.C.

36. The aforesaid legal position would
suggest that it is for the State or for the
District Magistrate under Section 377
Cr.P.C. to file an appeal for enhancement of
the sentence and neither the victim under
Section 372 Cr.P.C. nor the complainant of
a complaint case could file such an appeal
or application to grant special leave to
appeal pertaining to the enhancement of
sentence. Thus, the appeal/application for
grant of special leave for enhancement of
the sentence pertaining to the sentence
imposed by the trial court on the accused
Santosh Kumar Gupta with regard to
committing offence under Section 406
I.P.C., in the considered opinion of this
Court, is not maintainable under Section
378(4) Cr.P.C. Therefore, the request of the
appellant/applicant
to
this
extent
is
rejected.

37. Now coming to the next question,
as to whether the trial court has committed
any illegality in appreciating the evidence
available on record in order to exonerate
accused
Santosh
Kumar
Gupta
for
committing offence under Section 120B
I.P.C. or other accused persons for
committing offence under Section 120B
and 406 I.P.C., there cannot be any other
preposition than the fact that to constitute
an offence under Section 120B I.P.C., the
meeting of minds is an important ingredient
and either there must be a direct evidence
or the evidence of circumstantial nature
whereby a valid inference could be made
that before committing particular offence,
the accused persons were having an
opportunity to have consesus in order to
hatch a conspiracy. Perusal of the judgment
of the trial court would reveal that the trial
court has acquitted accused Santosh Kumar
Gupta for committing offence under
Section 120B I.P.C. and other accused
persons of the charges framed under
Section 406/120B I.P.C. on following
grounds.

(i) The complainant failed to prove
meeting of minds of accused persons for
hatching a conspiracy to misappropriate her
stridhan.

(ii) The list of articles filed with the
complaint only contains signature of
complainant
and
is
not
containing
signatures of any accused persons.

(iii) The complainant in her statement
recorded before the trial court has admitted
that articles at the time of vidai were given
by her parents in the custody of accused
Santosh Kumar Gupta.

(iv) Notice to return articles was given
to accused Santosh Kumar Gupta (himself).

(v) P.W.-3 Sunil Kumar Gupta has
given hearsay evidence.

(vi) The evidence of the prosecution
only proves that articles were only
entrusted to husband and despite notice he
has
not
returned
the
articles
and
misappropriated
the
same
and
then
convicted only the accused Santosh Kumar
Gupta for committing offence under
Section 406 I.p.C. and acquitted him of
charge under Section 120 I.P.C. and other
persons of charge sunder Sections 120B
and 406 I.P.C.

38. Hon'ble Supreme Court of India in
Pratibha Rani Vs. Suraj Kumar and
Ors.;
MANU/SC/0090/1985,
while
discussing the ingredient of Section 405
I.p.C. as punishable under Section 406
I.P.C., held as under:-

"Section 405 of the Penal Code reads
thus:
1 All. Smt. Kalpana Gupta Vs. State of U.P. & Anr.
1001

"Section 405.- Criminal breach of
trust.- Whoever, being in any manner
entrusted with property, or with any
dominion
over
property,
dishonestly
misappropriates or converts to his own use
that property, or dishonestly uses or
disposes of that property in violation of any
direction of law prescribing the mode in
which such trust is to be discharged, or of
any legal contract, express or implied,
which he has made touching the discharge
of such trust, or willfully suffers any other
person so to do, commits "criminal breach
of trust".

A careful reading of Section 405 shows
that the ingredients of a criminal breach of
trust are as follows:

i) A person should have been entrusted
with property, or entrusted with dominion
over property;
ii)
That
person
should
dishonestly
misappropriate or convert to their own use
that property, or dishonestly use or dispose
of that property or willfully suffer any other
person to do so; and

iii)
That
such
misappropriation,
conversion, use or disposal should be in
violation
of
any
direction
of
law
prescribing the mode in which such trust is
to be discharged, or of any legal contract
which the person has made, touching the
discharge of such trust.

Entrustment is an essential ingredient
of the offence. A person who dishonestly
misappropriates property entrusted to them
contrary to the terms of an obligation
imposed is liable for a criminal breach of
trust and is punished under Section 406 of
the Penal Code .The jurisdiction under
Section 482 of the Code of Criminal
Procedure has to be exercised with care. In
the exercise of its jurisdiction, a High
Court can examine whether a matter which
is essentially of a civil nature has been
given a cloak of a criminal offence. Where
the ingredients required to constitute a
criminal offence are not made out from a
bare
reading of
the
complaint,
the
continuation of the criminal proceeding
will constitute an abuse of the process of
the court.

"39. The Supreme Court in a large
number of cases has held that the
fundamental core of the offence of criminal
breach of trust is that a property must be
entrusted and the dominion of the property
should be given to the trustee. In the
present case, all these conditions, even
according to the findings of the Court
Though not its conclusion are clearly
established. That the view of the High
Court is absolutely wrong would be clear
from a number of authorities, some of
which we would like to discuss here.

40. In Chelloor Manaklal Naravan
Ittiravi aNambudiri v. State of Travancore
MANU/SC/0091/1952 : AIR1953SC478 this
Court made the following observations: