Complainat need not file lEave to apepal against acquittal u/s 138 NI Act

 

In a criminal offence, if an accused charged with any offence is acquitted, then, the prosecution has the option of preferring appeal. Generally, leave to appeal is required to be filed and only if the leave is granted, that the appeal shall be heard in normal course. The principle of the same is contained in Section 378 of Cr.PC corresponding to Section 419 of BNS. However, in cases u/s 138 of Negotiable Instruments Act, in case of acquittal of accused generally, the private complainant prefers leave to appeal before the High Court in the manner narrated in Section 378(4) Cr.PC/Section 419 of BNS. The complainant in such cases, shall have to therefore undergo two tiers of proceedings i.e (i) to satisfy the appellate court that the leave to appeal ought to be granted and on that premise the appellant has to show and persuade the court towards prima facie satisfaction and only thereafter appeal is heard. In this manner the complainant had to undergo the twin test and only when leave is granted, the appeal could be heard and obviously that entailed time and prospect of delay cannot be ruled out. The pertinent point herein, however is as to why a complainant, u/s 138 of Negotiable Instruments Act, who, may in closer scrutiny be taken as “victim” as well, besides, a complainant should not be permitted to appeal in such manner a “victim” of cases under Indian Penal Code (BNS) are entitled to. Section 372 of Cr.PC (Section BNSS 413) has been exhaustively dealt with in this regard. If such a permission could be granted to the “victim” in ordinary F.I.R cases, why the complainant should not be accorded eligibility for preferring appeal u/s 372 of Cr.PC( BNSS) against an accused who is acquitted of offence, u/s 138 of Negotiable Instruments Act. The aspect has been thoroughly scrutinized by the hon’ble Supreme Court and a categorical ruling is given in a recent judgment reported as 2025 INSC 804 (Arising out of Special Leave Petition (Crl.) Nos.137-139/2025) and captioned as M/s. Celestium Financial Vs A. Gnanasekaran etc

The central issue arising for adjudication in the appeals before supreme court was-

Whether an appeal would be maintainable under the proviso to Section 372 of the Code of Criminal Procedure, 1973 (for short, “CrPC”) against an order of acquittal passed in a case instituted upon a private complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act”), by treating the complainant in such a proceeding as a victim within the 1 meaning ascribed to the term under Section 2(wa) of the CrPC.

The Supreme Court in M/s. Celestium Financial Vs A. Gnanasekaran (Supra) took note of Mallikarjun Kodagali (dead) through LRs vs. State of Karnataka, (2019) 2 SCC 752 (“Mallikarjun Kodagali”), wherein, there is a reference to four reports that have dealt with the rights of victims of crime and the remedies available to them, such as:

i. In March 2003, Justice Malimath Committee submitted its report on ‘Reforms of Criminal Justice System’. Paragraph 2.21 in the Chapter on Adversarial Rights under the sub heading of ‘Victims Right to Appeal’, states as under:

"2.21. The victim or his representative, who is a party to the trial should have a right to prefer an appeal, against any adverse order passed by the trial court. In such an appeal he could challenge the acquittal, or conviction for a lesser offence or inadequacy of sentence, or in regard to compensation payable to the victim. The appellate court should have the same powers as the trial court in regard to assessment of evidence and awarding of sentence."

Justice Malimath Committee also have dealt with the issue under the head “justice to victim” and have made following recommendations in paragraph 6(14) :

"6. (14)(v) The victim shall have a right to prefer an appeal against any adverse order passed by the court acquitting the accused, convicting for a lesser offence, imposing inadequate sentence, or granting inadequate compensation. Such appeal shall lie to the court to which an appeal ordinarily lies against the order of conviction of such court."

It is also suggested that the victim must be impleaded in the trial proceedings so that such a party would have right to file an appeal against an adverse order, particularly, an order of acquittal. In the 221^st Report of the Law Commission of India in April, 2009, it has been noted that as per the prevailing law, an aggrieved person could not file an appeal against an order of acquittal. However, a revision petition could be filed. As powers of revisional court are limited and thus, a recommendation was made by the Law Commission that as against an order of acquittal passed by a Magistrate, a victim should be entitled to file an appeal before the revisional court. Similarly, it is also suggested that in complaint cases, the appeal should be provided to the Sessions Court instead of the High Court. However, it was suggested that the aggrieved person or complainant should have the right to prefer an appeal with the leave of the appellate court.

It was further recommended that Section 378 of the CrPC requires an amendment with a view to enable filing of appeals in complaint cases also in the Sessions Court, of course, subject to the grant of special leave by it. Limited scope of powers of a revisional court under Section 401 of the CrPC was taken note of and it was suggested that there is a need to amend the CrPC.

It is in this backdrop that an amendment was brought to Section 372 of the CrPC with effect from 31.12.2009 by adding a proviso thereto. The decisions of the Full Benches of the High Courts in the matter of interpretation of the proviso to Section 372 of the CrPC are highlighted by the Supreme Court in the case of Mallikarjun Kodagali (Supra). It was observed in paragraphs 74, 75 & 76 as under:

“74. Putting the Declaration to practice, it is quite obvious that the victim of an offence is entitled to a variety of rights. Access to mechanisms of justice and redress through formal procedures as provided for in national legislation, must include the right to file an appeal against an order of acquittal in a case such as the one that we are presently concerned with. Considered in this light, there is no doubt that the proviso to Section 372 CrPC must be given life, to benefit the victim of an offence.

“The language of the proviso to Section 372 CrPC is quite clear, particularly when it is contrasted with the language of Section 378(4) CrPC. The word “complaint” has been defined in Section 2(d) CrPC and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR, and therefore it is not at all necessary to consider the effect of a victim being the complainant, as far as the proviso to Section 372 CrPC is concerned.” Consequently, the appeals in the said case were allowed and the judgment and order of the High Court was set aside and the matter was remanded to the High Court to hear and decide the appeal against the judgment and order of acquittal once again”.

“Prior to the insertion of the proviso to Section 372 of the CrPC, the victim had no right to file an appeal, unless, he was also a complainant. This was because, the State would represent the victim of the crime. Therefore, the question, whether the victim, while filing an appeal against the acquittal of an accused under proviso to Section 372 of the CrPC in the High Court, is required to obtain leave under Section 378(3) of the CrPC, was answered in the affirmative. In this regard, reference was made to sub-section (4) of Section 378 which deals with an appeal filed by the complainant. In case the order of acquittal is passed in a case instituted upon a complaint, in such a case, an appeal has to be filed in the High Court. Such an appeal cannot be entertained unless the High Court grants special leave to appeal from the order of acquittal. Sub-section (5) provides the limitation period for filing the petition for grant of special leave to appeal in terms of sub-section (4). Sub-section (6) lays down that in case the application for special leave to appeal filed by a complainant under sub-section (4) is refused, then, no appeal from that order of acquittal shall lie under sub-section (1) or under sub section (2). Thus, in a complaint case, complainant can file an appeal, only, by seeking special leave to appeal in case the appeal lay before the High Court”.

Significantly, as per general prescription of law, an appeal against an order of acquittal passed by a Magistrate in respect of cognizable and non bailable offences, would lie to the Sessions Court, and no leave to appeal is required. However, an appeal with respect to offences which are non-cognizable or bailable would lie to the High Court. In such cases, leave to appeal is a prerequisite. The remaining kinds of appeals are those appeals which lie to the High Court against the judgments of the Sessions Court. These are serious criminal matters relating to graver offences.

If one takes a situation that when a complainant files an appeal, against an order of acquittal, that would require obtaining of special leave to appeal u/s 378(4) of Cr.PC, however, in case of an appeal filed by a victim, under proviso to Section 372 of the CrPC, no such leave to appeal is required. The question thus arises is whether, a victim is placed on a higher pedestal than the complainant? It is also understood, though, that in some cases, a victim or complainant may be one and the same person.

If one ponders over the issue little further, to perceive, that if the rights of the complainant is restricted in a cheque bounce case, to file an appeal under Section 378(3) of the CrPC subject to the conditions mentioned thereto, such a right would perhaps be illusory and contrary to the intent and purpose of the amendment to Section 372 of the CrPC. In section 372, a proviso has been added with effect from 31.12.2009, with a view to give a right of an appeal to a victim, without there being any condition, thereby, either restricting or circumscribing such a right.

The relevant provisions of Cr.PC may also be analysed for true import of discussion. 

Analysis of the Relevant Provisions of CrPC:

Section 2 is the definition clause under which relevant definitions are extracted as under:

“2. Definitions.—In this Code, unless the context otherwise requires,— 

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

Explanation—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; 

(n) “offence” means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle Trespass Act, 1871 (1 of 1871); xxx

(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.

To buttress the issue further, the Chapter XXIX contains the provisions of “Appeals”. Section 372 of Cr.PC may be perused:     

 

372. No appeal to lie unless otherwise provided—

No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code by any other law for the time being in force:

*Provided that the victim shall have a right to prefer an appeal against any 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.

*w.e.f 31.12.2009

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 against the sentence on the ground of its inadequacy—

(a) to the Court of Session, if the sentence is passed by the Magistrate; and 22 (b) to the High Court, if the sentence is passed by any other Court.

(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, the Central Government may also direct the Public Prosecutor to present an appeal against the sentence on the ground of its inadequacy—

(a) to the Court of Session, if the sentence is passed by the Magistrate; and

(b) to the High Court, if the sentence is passed by any other Court.

(3) When an appeal has been filed against the sentence on the ground of its inadequacy, the Court of Session or, as the case may be, 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 plead for his acquittal or for the reduction of the sentence.

*(4) When an appeal has been filed against a sentence passed under section 376, section 376A, section 376AB, section 376B, section 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code (45 of 1860), the appeal shall be disposed of within a period of six months from the date of filing of such appeal.

*w.e.f 21.04.2018

378. Appeal in case of acquittal.—

(1) Save as otherwise provided in sub-section (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 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, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal—

(a) to the Court of Session, from an order of acquittal passed by a Magistrate 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 to the High Court 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). 

 

The Section 378 of the CrPC is a specific provision dealing with appeals. There are various sub-sections to the sections entailing the specifics, such as Sub-section (3) of Section 378 states that no appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained, except with the leave of the Court. However, sub-section (4) of Section 378 is pertinent. It states that if an order of acquittal is passed in any case instituted upon a complaint and the High Court, on an application made to it, by the complainant in that behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. The limitation period for seeking special leave to appeal is Six months (If the complainant is a public servant) and sixty (60) days in every other case, reckoned from the date of the order of acquittal. Sub-Section (6) states that if, in any case, the application under sub-section (4) for 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) of Section 378.Therefore, if leave to appeal is not granted the issue raised in the leave to appeal cannot go beyond from that stage.

After having analysed the terms of Cr.PC and the stipulations contained thereto for the purpose of filing appeal, it may be apt to deliberate on the provisions of Negotiable Instruments Act. The relevant provisions are as under:

141. Offences by companies.—

(1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence: Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation.— For the purposes of this section, — (a) “company” means anybody corporate and includes a firm or other association of individuals; and (b) “director”, in relation to a firm, means a partner in the firm.

        142. Cognizance of offences.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),—

(a) no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;

(b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to section 138: Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period;

(c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under section 138.

(2) The offence under section 138 shall be inquired into and tried only by a court within whose local jurisdiction,—

(a) if the cheque is delivered for collection through an account, the branch of the bank where the payee or holder in due course, as the case may be, maintains the account, is situated; or

(b) if the cheque is presented for payment by the payee or holder in due course, otherwise through an account, the branch of the drawee bank where the drawer maintains the account, is situated.

Explanation.—For the purposes of clause (a), where a cheque is delivered for collection at any branch of the bank of the payee or holder in due course, then, the cheque shall be deemed to have been delivered to the branch of the bank in which the payee or holder in due course, as the case may be, maintains the account.

143. Power of Court to try cases summarily.—

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials: Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees: Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.

(2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.

(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint. xxx

147. Offences to be compoundable.—

Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.”

A person who fails to satisfy his legal liability to honour a cheque owing to insufficiency of funds, or other reasons concerning his bank account is deemed to have committed an offence under Section 138 of the Act and 38 therefore is charged as an accused for such an offence and can be punished by imprisonment for a term which may extend to two years or a fine which may extend to twice the amount of the cheque or both.

The expression ‘accused’ is not defined under the CrPC but it denotes different meanings according to the context in which it is deployed. It, inter alia, means, a person against whom there is an accusation, or a person on trial, and so on. The expression ‘accused of any offence’ would include within its ambit only a person against whom formal accusation relating to commission of offence has been levelled which in the normal course may result in his prosecution.

It would be pertinent to refer to Section 200 of CrPC as a proceeding under Section 138 of the Act is commenced not on the basis of a police report, but on the basis of a complaint filed under Section 200 of the CrPC. The expression ‘complaint’ is defined under Section 2(d) of the CrPC to mean an allegation made orally or in writing to a Magistrate with a view to his taking action under the CrPC, that some person, whether known or unknown, has committed an offence but does not include a police report.

To elucidate it further, when a complaint is filed under Section 200 of the CrPC, a Magistrate taking cognizance of an offence on such complaint examines upon oath the complainant and the witnesses present, if any, and the substance of such examination is reduced to writing which is required to be signed by the complainant and the witnesses and also the Magistrate. Section 202 of the CrPC states that any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process, and either inquire into the case himself or direct an investigation for the purpose of deciding whether or not there is sufficient ground for proceeding. However, no such direction for investigation shall be made where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under Section 200 of the CrPC.

Chapter XXI of the CrPC deals with summary trials. The said chapter has to be read in conjunction with Section 143 of the Act which states that all offences under Chapter XVII of the Act, including an offence under Section 138 (dishonour of cheque for insufficiency, etc., of funds in the account) shall be tried by a Judicial Magistrate of First Class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 of the CrPC (both inclusive), shall, as far as may be, apply to such trials. Thus, for an offence committed under Section 138 of the Act, the trial is as per Section 143 of the said Act read with Chapter XXI of the CrPC. The fact that under Section 138 of the Act, a deeming fiction has been introduced, wherein a person who comes within the scope and ambit of the section is a person who is deemed to have committed an offence and could be punished with both 41 imprisonment as well as with fine, would mean that such a person is an accused and is charged for the said offence and tried under Chapter XXI of the CrPC by way of a summary trial.

As already noted, the Negotiable Instruments Act does not have a provision for filing of an appeal. The Act is a special enactment. In the circumstances, the CrPC, which is general in nature would have to be resorted to. The proviso to Section 372 of the CrPC considers the right of filing of an appeal from the point of view of a victim, which expression not only includes an injured victim, but even the legal representatives of a deceased victim. The inclusion of the proviso to Section 372 of the CrPC has to be read in the context of the definition of victim in clause (wa) of Section 2 of the CrPC. The expression ‘victim’ as defined under the said provision, includes not only the person who has suffered any loss or injury caused by the reason of the act or omission for which the accused person has been charged but the said expression also includes his or her guardian or legal heir.

According to Supreme Court in Celestium Financial (Supra), in the context of offences under the NI Act, particularly under Section 138 of the said Act, the complainant is clearly the aggrieved party who has suffered economic loss and injury due to the default in payment by the accused owing to the dishonour of the cheque which is deemed to be an offence under that provision. In such circumstances, it would be just, reasonable and in consonance with the spirit of the CrPC to hold that the complainant under the Act also qualifies as a victim within the meaning of Section 2(wa) of the CrPC. Consequently, such a complainant ought to be extended the benefit of the proviso to Section 372, thereby enabling him to maintain an appeal against an order of acquittal in his own right without having to seek special leave under Section 378(4) of the CrPC.

The complainant u/s 138 of Negotiable Instruments Act is a victim

In the case of an offence alleged against an accused under Section 138 of the Act, the Supreme Court has held that the complainant is indeed a victim, owing to the alleged dishonour of a cheque. In the circumstances, the complainant can proceed as per the proviso to Section 372 of the CrPC and he may exercise such an option and he need not then elect to proceed under Section 378 of the CrPC. Thew Supreme Court has further added that the proviso to Section 372 does not make a distinction between an accused who is charged of an offence under the penal law or a person who is deemed to have committed an offence under Section 138 of the NI Act. Symmetrical to a victim of an offence, a victim of a deemed offence under Section 138 of the NI Act also has the right to prefer an appeal against any order passed by the court, acquitting the accused or convicting for a lesser offence or imposing an inadequate compensation. When viewed from the perspective of an offence under any penal law or a deemed offence under Section 138 of the Negotiable Instruments Act, the right to file an appeal is not circumscribed by any condition as such, so long as the appeal can be premised in accordance with proviso to Section 372 which is the right to file an appeal by a victim, provided the circumstances which enable such a victim to file an appeal are met. The complainant under Section 138 of Negotiable Instruments Act ,is the victim who must also have the right to prefer an appeal under the said provision. Merely because the proceeding under Section 138 of the Act commences with the filing of a complaint under Section 200 of the CrPC by a complainant, he does not cease to be a victim inasmuch as it is only a victim of a dishonour of cheque who can file a complaint. Thus, under Section 138 of the Act, both the complainant as well as the victim are one and the same person.

The reasons elucidated for this purpose can be elaborated as follows:

Firstly, the victim of a crime must have an absolute right to prefer an appeal which cannot be circumscribed by any condition precedent. In the instant case, a victim under Section 138 of the Act, i.e., a payee or the holder of a cheque is a person who has suffered the impact of the offence committed by a person who is charged of the offence, namely, the accused, whose cheque has been dishonoured.

Secondly, the right of a victim of a crime must be placed on par with the right of an accused who has suffered a conviction, who, as a matter of right can prefer an appeal under Section 374 of the CrPC. A person convicted of a crime has the right to prefer an appeal under Section 374 as a matter of right and not being subjected to any conditions. Similarly, a victim of a crime, whatever be the nature of the crime, unconditionally must have a right to prefer an appeal.

Thirdly, it is for this reason that the Parliament thought it fit to insert the proviso to sub-section 372 without mandating any condition precedent to be fulfilled by the victim of an offence, which expression also includes the legal representatives of a deceased victim who can prefer an appeal. On the contrary, as against an order of acquittal, the State, through the Public Prosecutor can prefer an appeal even if the complainant does not prefer such an appeal, though of course such an appeal is with the leave of the court.

However, it is not always necessary for the State or a complainant to prefer an appeal. But when it comes to a victim’s right to prefer an appeal, the insistence on seeking special leave to appeal from the High Court under Section 378(4) of the CrPC would be contrary to what has been intended by the Parliament by insertion of the proviso to Section 372 of the CrPC.

Fourthly, the Parliament has not amended Section 378 to circumscribe the victim’s right to prefer an appeal just as it has with regard to a complainant or the State filing an appeal. On the other hand, the Parliament has inserted the proviso to Section 372 so as to envisage a superior right for the victim of an offence to prefer an appeal on the grounds mentioned therein as compared to a complainant.

Fifthly, the involvement of the State in respect of an offence under Section 138 of the Act is conspicuous by its absence. This is because the complaint filed under that provision is in the nature of a private complaint as per  Section 200 of the CrPC and Section 143 of the Act by an express intention incorporates the provisions of the CrPC in the matter of trial of such a deemed offence tried as a criminal offence. Therefore, the complainant, who is the victim of a dishonour of cheque must be construed to be victim in terms of the proviso to Section 372 read with the definition of victim under Section 2(wa) of the CrPC.

 

The right to prefer an appeal is a statutory right, whereas, the right to prefer an appeal by an accused against a conviction is not merely a statutory right, but, can also be construed to be a fundamental right under Articles 14 and 21 of the Constitution. If that is so, then the right of a victim of an offence to prefer an appeal cannot be equated with the right of the State or the complainant to prefer an appeal. Hence, the statutory rigours for filing of an appeal by the State or by a complainant against an order of acquittal cannot be read into the proviso to Section 372 of the CrPC so as to restrict the right of a victim to file an appeal on the grounds mentioned therein, when none exists.

In such a circumstances, according to Supreme Court, Section 138 of the Act being in the nature of a penal provision by a deeming fiction against an accused who is said to have committed an offence under the said  provision, if acquitted, can be proceeded against by a victim of the said offence, namely, the person who is entitled to the proceeds of a cheque which has been dishonoured, in terms of the proviso to Section 372 of the CrPC, as a victim. As illustrated above, a victim of an offence could also be a complainant. In such a case, an appeal can be preferred either under the proviso to Section 372 or under Section 378 of Cr.PC by such a victim. In the absence of the proviso to Section 372, a victim of an offence could not have filed an appeal, as such, unless he was also a complainant, in that event he could maintain an appeal If special leave to appeal had been granted by the High Court. and if no such special leave was granted then his appeal would not be maintainable at all. On the other hand, according to Supreme Court, if the victim of an offence, who may or may not be the complainant, proceeds under the proviso to Section 372 of the CrPC, then, such a victim need not seek special leave to appeal from the High Court. In other words, the victim of an offence would have the right to prefer an appeal, inter alia, against an order of acquittal in terms of the proviso to Section 372 without seeking any special leave to appeal from the High Court only on the grounds mentioned therein. A person who is a complainant under Section 200 of the CrPC, who complains about the offence committed by a person who is charged as an accused under Section 138 of the Act, thus, has the right to prefer an appeal as a victim under the proviso to Section 372 of the CrPC.

It was noted by the Supreme Court in M/s. Celestium Financial Vs A. Gnanasekaran (Supra) that, the proviso to Section 372 of the CrPC was inserted in the statute book only with effect from 31.12.2009 and hence, the object and reason for such insertion must be understood and be given its full effect to by a court and hence, it was held that the victim of an offence has the right to prefer an appeal under the proviso to Section 372 of the CrPC, irrespective of whether he is a complainant or not. Even if the victim of an offence is a complainant, he can still proceed under the proviso to Section 372 and need not advert to sub-section (4) of Section 378 of the CrPC.

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                                        Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com