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.
10. As already noted, the proviso to Section 372 of the CrPC was inserted in the statute book only with effect from 31.12.2009. The object and reason for such insertion must be realised and must be given its full effect to by a court. In view of the aforesaid discussion, we hold 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.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. OF 2025
M/s. CELESTIUM FINANCIAL Vs A. GNANASEKARAN ETC.
Citation: 2025 INSC 804.
Dated: APRIL 08, 2025.
Leave granted.
2. These appeals have been preferred by the appellant against
the common judgment dated 12.06.2024 passed by the High Court
of Judicature at Madras in Crl. O.P. Nos.929, 931 and 1034 of
2024 in Crl. A. SR. Nos.1282, 1300 and 1321 of 2024.
2.1 The central issue arising for adjudication in the instant
appeals is, 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
meaning ascribed to the term under Section 2(wa) of the CrPC.
Factual Background:
3. Briefly stated, the facts of the case according to the appellant
are as under:
3.1 The appellant herein is the complainant being a registered
partnership firm engaged in the business of finance. The appellant
had extended financial assistance to the respondents over a period
of time. It is the case of the appellant that respondent No.1 was
the principal borrower and in order to avail further credit, he
obtained additional loans through respondent Nos.2 and 3, who
acted at his behest. Respondent No.1 is stated to be carrying on a
catering business under the name and style of “R.R. Caterers”.
3.2 Respondent No.1 had on earlier occasions availed several
loans from the appellant. As on 27.04.2015, an outstanding sum
of Rs. 16,00,000/- stood due from him. Seeking further financial
accommodation, respondent No.1 along with his spouse entered
into a sale agreement dated 15.05.2015 with one Mr. S. Babu, an
employee of the appellant. Pursuant thereto, a further sum of Rs.
20,00,000/- was sanctioned to him carrying interest at 18% per
annum.
3.3 Thereafter, on 13.05.2016, respondent No.2 availed a loan of
Rs. 15,00,000/- from the appellant at an interest of 20% per
annum, repayable in twelve equal monthly instalments of Rs.
1,25,000/-. Respondent No.2 made partial repayments through
cash deposits dated 09.06.2016, 30.09.2016, and 15.07.2017.
Subsequently, on 30.11.2016, respondent No.3 availed a loan of
Rs. 12,00,000/- from the appellant, carrying interest at the rate of
24% per annum. The loan was repayable over a period of twelve
months with EMIs fixed at Rs. 1,00,000/- each.
3.4 Thereafter, on 31.05.2017, respondent No.1 availed a further
loan facility from the appellant to the tune of Rs. 21,00,000/-,
carrying interest at 24% per annum. The interest component,
amounting to Rs. 2,94,000/-, was deducted upfront, and the net
sum of Rs. 18,06,000/- was disbursed to respondent No.1. The
loan was repayable over a period of seven months in equated
monthly instalments of Rs. 3,00,000/- each.
3.5 A few months later, on 17.07.2017, respondent No.1 secured
an additional loan from the appellant in a sum of Rs. 15,00,000/-,
with interest agreed at 22.5% per annum. From the sanctioned
amount, Rs. 1,42,500/- was appropriated towards interest and the
net principal of Rs. 13,57,500/- was determined. On the specific
4
request of respondent No.1, one EMI of Rs. 3,00,000/- pertaining
to the earlier loan was deducted and the effective disbursal was
Rs. 10,57,500/-. The loan was structured to be repaid in five
monthly instalments of Rs. 3,00,000/- each.
3.6 Subsequently, on 11.09.2017, respondent No.1 once again
sought financial assistance and was sanctioned a further sum of
Rs. 25,00,000/- carrying interest at the rate of 18% per annum.
After deducting interest to an extent of Rs. 3,75,000/-, the net
amount available stood at Rs. 21,25,000/-. At the instance of
respondent No.1, two EMIs of Rs. 3,00,000/- each relating to
earlier borrowings were adjusted and a final amount of
Rs.15,25,000/- was disbursed. The loan tenure was fixed at ten
months with equated monthly instalments of Rs. 2,50,000/-.
3.7 In partial discharge of his liability, respondent No.2 issued a
cheque bearing No.145325 dated 29.10.2018 for a sum of Rs.
6,25,000/- in favour of the appellant. However, upon presentation
of the said cheque on 30.10.2018, it was dishonoured with the
endorsement “Funds Insufficient”. Similarly, respondent No.3
issued a cheque bearing no. 491078 dated 24.10.2018 for an
amount of Rs. 10,00,000/- and when the same was presented on
30.10.2018, it was returned unpaid on 31.10.2018 for identical
reasons.
5
3.8 Thereafter, the appellant issued separate statutory notices
dated 12.11.2018 under Section 138 of the Act, calling upon
respondent Nos.2 and 3 to honour the respective amounts. Upon
their failure to comply, the appellant instituted criminal
complaints before the Fast Track Court at Alandur, which came to
be registered as C.C. No. 417 of 2018 and C.C. No. 418 of 2018
respectively.
3.9 In discharge of his liability, respondent No.1 issued three
cheques bearing nos. 000150, 000191, and 000192, all dated
28.03.2019, in favour of the appellant. The said cheques were
presented for encashment on 21.06.2019 but were returned
dishonoured on 24.06.2019 with the endorsement “Funds
Insufficient”. Consequently, a statutory demand notice dated
08.07.2019 was issued by the appellant to respondent No.1 under
Section 138 of the Act. Upon his failure to make good the payment,
the appellant instituted a criminal complaint before the Fast Track
Court at Alandur which was registered as C.C. No. 285 of 2019.
3.10 For the sake of clarity and convenience, the particulars of
the cheques issued by the respondents said to be towards
discharge of their respective liabilities are as follows:
6
Sl.
No
Cheque
No.
Issued
by:
Amount
(Rs.)
Date of
Issuance of
cheques
Date of
Dishonour
of cheques
Case No.
1 145325 Respt.
No.2
Rs. 6,25,000 29.10.2018 31.10.2018 C.C. No. 417
of 2018
2 491078 Respt.
No.3
Rs.10,00,000 24.10.2018 31.10.2018 C.C. No. 418
of 2018
3 000150
Respt.
No.1
Rs. 9,00,000 28.03.2019 24.06.2019 C.C. No. 285
of 2019
4 000191 Rs. 12,00,000
5 000192 Rs. 25,00,000
3.11 By separate judgments dated 07.11.2023, the learned
Judicial Magistrate acquitted respondent Nos.1 to 3 for the offence
punishable under Section 138 of the Act in terms of Section 255(1)
of the CrPC. The acquittal was premised on the finding that the
appellant had failed to discharge the burden of proving the
existence of a legally enforceable debt or liability and further,
respondent Nos.1 to 3 succeeded in rebutting the statutory
presumption available to the complainant under Section 139 of the
said Act.
3.12 Being aggrieved by the judgments dated 07.11.2023, the
appellant preferred petitions before the High Court seeking special
leave to appeal under Section 378(4) of the CrPC in Criminal
7
Appeal SR Nos.1282, 1300 and 1321 of 2024 by assailing the
judgments rendered in C.C. Nos. 417 of 2018, 418 of 2018 and
285 of 2019, dated 07.11.2023.
3.13 By the common impugned order dated 12.06.2024, the
High Court dismissed the petitions filed by the appellant seeking
leave to appeal. The High Court observed that the grant of leave
under Section 378(4) of the CrPC is not a mere formality but a
substantive safeguard designed to protect the rights of persons
who, having been acquitted of criminal charges, ought not to be
subjected to further protracted litigation. It was further held that
the grant of leave is contingent upon the petitioner before the
Appellate Court to establish a prima facie case that warrants
interference. Referring to the present case, the High Court held
that the appellant could not demonstrate that the conclusions
arrived at by the learned Magistrate are so perverse or manifestly
erroneous as to result in a miscarriage of justice. In the absence of
such compelling grounds, the High Court declined to exercise its
discretionary jurisdiction to grant leave to appeal. It is in these
circumstances that the appellant has approached this Court by
way of the present appeal assailing the legality and correctness of
the impugned order of the High Court dated 12.06.2024.
8
Submissions:
4. We have heard learned counsel for the appellant and learned
senior counsel for the respondent at length. We have also perused
the material on record and the judgments cited at the Bar.
4.1 Learned counsel for the appellant contended that the High
Court was not right in refusing to grant leave under Section 378(4)
of the CrPC on the ground that the appellant had not demonstrated
that the conclusions arrived at by the Magistrate were erroneous
or contrary to law. The High Court ought to have exercised its
discretion by granting leave to the appellant to prosecute his
appeal inasmuch as the impugned order has now made the
appellant remediless.
4.2 Alternatively, it was submitted that the appellant could also
be construed to be a victim of the offence committed by the
accused under Section 138 of the Act. If that is so, then as a victim
the appellant has a right to assail the judgment of acquittal as per
the proviso to Section 372 of the CrPC. In such an event, the need
for obtaining leave to file an appeal would not arise at all. In this
regard, proviso to Section 372 was contrasted with sub-section (4)
of Section 378 of the CrPC. It was contended that under proviso to
Section 372 which has been in force with effect from 31.12.2009,
9
as it was added by way of an amendment, the victim of an offence
has 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. Such an appeal would lie to
the Court to which an appeal ordinarily lies against the order of
conviction of such Court. The right to file an appeal by a victim of
an offence under the provision to Section 372 CrPC is not
circumscribed by the necessity of obtaining leave to file an appeal.
It was contended that under sub-section (4) of Section 378 which
deals with an appeal against a judgment of acquittal in any case
instituted upon a complaint then on an application made to the
High Court by the complainant, it is only when special leave to
appeal is granted by the High Court from the order of acquittal,
that the complainant may present such an appeal to the High
Court. In the present case, the complaint under Section 138 of the
Act was no doubt filed by the appellant herein but not merely as a
complainant but as a victim of the offence under Section 138 of
the Act. It was submitted that in all cases, the victim may not be
the complainant and vice-a-versa but if the victim is also the
complainant, then the victim could always proceed under the
proviso to Section 372 of the CrPC rather than as a complainant
under sub-section (4) of Section 378 of the CrPC. Therefore, in the
10
instant case, the appellant herein who ought to be considered as a
victim of the offence under Section 138 of the Act having been
committed by the accused has the right to prefer an appeal under
Section 372 of the CrPC. Therefore, it was wholly unnecessary for
the appellant to have obtained special leave to appeal from the
High Court. For this reason also, the impugned order may be setaside and the matter may be remanded to the High Court so that
the High Court would enable the appellant herein to file his appeal
before the competent appellate Court. Learned counsel for the
appellant, therefore, sought for setting-aside of the impugned
order.
4.3 Per contra, learned counsel for the respondent/accused
submitted that the order of the High Court was on merits and that
the appellant has not proved his case against the respondents
herein. Therefore, the learned Magistrate rightly acquitted the
respondents herein. The High Court was also justified in declining
to grant the special leave to appeal from the order of acquittal.
There is no merit in the submissions made by the learned counsel
for the appellant. The appellant is the complainant and, therefore,
he sought for special leave to appeal from the High Court against
the judgment of acquittal which has rightly been declined.
11
Therefore, there is no merit in this appeal and, therefore, the same
may be dismissed.
5. In Mallikarjun Kodagali (dead) represented through
Legal representative vs. State of Karnataka, (2019) 2 SCC
752 (“Mallikarjun Kodagali”), there is a reference to four reports
that have dealt with the rights of victims of crime and the remedies
available to them. The same may be briefly discussed as under:
i. The first report is the 154th Report of the Law Commission of
India of August, 1996. The said Report touched upon, inter
alia, compensation to be paid to the victim of crime, their
rehabilitation, etc.
ii. 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 subheading 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."
12
There is also discussion on other rights of victims under
the Chapter titled, ‘Justice to Victims’. In paragraph 6.(14)(v),
Justice Malimath Committee made the following
recommendations:
"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."
iii. In July 2007, a Report of the Committee on the Draft National
Policy on Criminal Justice was submitted which is also known
as ‘Professor Madhava Menon Committee Report’.
Observations with regard to providing victim-oriented
criminal justice and a balance between the constitutional
rights of an accused and victim of crime have been discussed.
One of the suggestions made is 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.
iv. In the 221st Report of the Law Commission of India submitted
in April, 2009, it has been noted that as the law then stood,
an aggrieved person could not file an appeal against an order
of acquittal. However, a revision petition could be filed. Noting
13
that the powers of a revisional court are limited and the
process involved is cumbersome, 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, 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.
v. 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.
5.1 Taking note of the aforesaid reports an amendment was
brought to Section 372 of the CrPC with effect from 31.12.2009 by
adding a proviso thereto.
14
5.2 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 this Court in the case of Mallikarjun Kodagali.
There are also Division Bench decisions of the High Courts taking
different views.
Mallikarjun Kodagali:
5.3 This Court in Mallikarjun Kodagali, speaking through
Lokur, J. referred to the Declaration of the Basic Principles of
Justice for Victims of Crime and Abuse of Power adopted by the
General Assembly of the United Nations in the 96th Plenary Session
on 29.11.1985. 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.
75. Under the circumstances, on the basis of the
plain language of the law and also as interpreted by
several High Courts and in addition the resolution
of the General Assembly of the United Nations, it is
quite clear to us that a victim as defined in Section
2(wa) CrPC would be entitled to file an appeal before
the Court to which an appeal ordinarily lies against
the order of conviction. …
15
76. … 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 text of this provision is quite clear and it
is confined to an order of acquittal passed in a case
instituted upon a complaint. 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.
5.4 In the said judgment, Deepak Gupta, J. was in complete
agreement with Lokur, J. on the fact that victims must be
permitted to access justice because it is sometimes found that the
investigating and prosecuting agency do not follow up cases with
zeal which is required and therefore proviso to Section 372 of the
CrPC must be given a meaning which is realistic, liberal,
progressive and beneficial to the victim of the offences. However,
Deepak Gupta, J. was of the opinion that one cannot ignore the
rights of the accused and the procedure prescribed by law. Hence,
he disagreed with Lokur, J.’s view that a victim can file an appeal
16
in the High Court without seeking leave to appeal in terms of
Section 378(3) of the CrPC.
5.5 The only difference of opinion was with regard to whether
the victim is required to seek leave of the High Court even in an
appeal filed in the High Court. While dealing with this issue, it was
observed by Deepak Gupta, J. that 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 subsection (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.
5.6 Dealing with the concept of leave to appeal, especially when
the appeals are filed in the High Court, it was observed by Deepak
Gupta, J. that the presumption of innocence of every accused is
fortified and strengthened when the said accused is acquitted by
the trial court. Therefore, the High Court, at the initial stage of
deciding whether the leave is to be granted or not, can go into the
merits of the case and only if there are arguable points involved,
would the High Court grant leave to appeal. This preliminary stage
is provided to prevent meritless appeals being filed before the High
Court and to ensure that innocent persons are not drawn to the
High Court at the appellate stage.
5.7 It was further noted that an appeal against an order of
acquittal passed by a Magistrate in respect of cognizable and nonbailable 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.
5.8 Even appeals against acquittals filed before the High Court
must be scrutinized with greater care. As opposed to Section 378(4)
of the CrPC, where a complainant would file an appeal against an
order of acquittal which would require special leave to appeal being
obtained, in the case of an appeal filed by a victim under proviso
to Section 372 of the CrPC, no such leave to appeal is required.
Then the question raised was, whether, a victim is to be placed on
a higher pedestal than the complainant, although in certain cases,
the victim and the complainant may be one and the same person.
Deepak Gupta, J. considered a situation where there are two
victims in a case and one of the victims files a complaint and sets
the wheels of justice moving and the case is tried as a complaint
case and the accused is acquitted. In such a case, the complainant
would have to seek special leave to appeal whereas the victim who
had not even approached the Court at the initial stage would be
entitled to file an appeal without seeking leave to appeal. While
considering this situation, Deepak Gupta, J. observed that while
expanding the rights of the victim to file an appeal, such right must
be balanced with the rights of the accused. Hence, it was the view
of Deepak Gupta, J. that even in a case when an appeal is filed by
a victim, there has to be scrutiny and special leave to appeal must
be obtained as the victim cannot be placed on a higher pedestal
than the State or the complainant. It was his view that by this
condition being imposed, the right of the victim to file an appeal is
not taken away or in any way diluted. Thus, according to his view,
Sections 378 (3), 378 (4) and 372 of the CrPC have to be read
together and the victim is also required to apply for leave to appeal
before his appeal can be entertained. Therefore, Deepak Gupta, J.
concluded that the right to file an appeal vested in the victim
cannot be higher than the right of filing an appeal which inheres
in the State and the complainant in a complaint case. Thus, if a
victim files an appeal against acquittal in the High Court, he has
to seek leave to appeal under Section 378 (3) of the CrPC.
5.9 If the interpretation as suggested by learned senior counsel
for the respondent is to be accepted by restricting the right of a
complainant in a cheque bounce case to file an appeal under
Section 378(3) of the CrPC subject to the conditions mentioned
20
thereto, we find that such a right would not only be illusory but
contrary to the intent and purpose of the amendment to Section
372 of the CrPC, whereby the proviso thereto has been added with
effect from 31.12.2009 to give a right of an appeal to a victim
without there being any condition circumscribing such a right.
5.10 In light of the two opposite views expressed in the above
judgment of this Court, it is necessary to discuss certain provisions
of the CrPC and arrive at our own conclusions on the point for
consideration. We observe that we are inclined to follow the view
taken by Lokur, J. insofar as the right of a victim of a crime to file
an appeal is concerned.
Analysis of the Relevant Provisions of CrPC:
6. Section 2 is the definition clause under which relevant
definitions are extracted as under:
“2. Definitions.—In this Code, unless the context
otherwise requires,—
xxx
(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
21
deemed to be a complaint; and the police officer by
whom such report is made shall be deemed to be the
complainant;
xxx
(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;
xxx
24. Public Prosecutors.-
xxx
(8) The Central Government or the State Government
may appoint, for the purposes of any case or class of
cases, a person who has been in practice as an
advocate for not less than ten years as a Special Public
Prosecutor:
Provided that the Court may permit the victim to
engage an advocate of his choice to assist the
prosecution under this sub-section.
CHAPTER XV
COMPLAINTS TO MAGISTRATES
200. Examination of complainant.—A Magistrate
taking cognizance of an offence on complaint shall
examine upon oath the complainant and the witnesses
present, if any, and the substance of such
examination shall be reduced to writing and shall be
signed by the complainant and the witnesses, and also
by the Magistrate:
22
Provided that, when the complaint is made in writing,
the Magistrate need not examine the complainant and
the witnesses—
(a) if a public servant acting or purporting to act in
the discharge of his official duties or a Court has
made the complaint; or
(b) if the Magistrate makes over the case for inquiry
or trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the
case to another Magistrate under section 192 after
examining the complainant and the witnesses, the
latter Magistrate need not re-examine them.
xxx
CHAPTER XXIX
APPEALS
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.
xxx
377. Appeal by the State Government against
sentence.—(1) Save as otherwise provided in subsection (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
23
(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.
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 nonbailable offence;
24
(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.
25
(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 subsection (2).
xxx
386. Powers of the Appellate Court.—After perusing
such record and hearing the appellant or his pleader,
if he appears, and the Public Prosecutor if he appears,
and in case of an appeal under section 377 or section
378, the accused, if he appears, the Appellate Court
may, if it considers that there is no sufficient ground
for interfering, dismiss the appeal, or may—
(a) in an appeal from an order or acquittal, reverse
such order and direct that further inquiry be
made, or that the accused be re-tried or
committed for trial, as the case may be, or find
him guilty and pass sentence on him according to
law;
(b) in an appeal from a conviction—
(i) reverse the finding and sentence and acquit or
discharge the accused, or order him to be retried by a Court of competent jurisdiction
subordinate to such Appellate Court or
committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the
nature or the extent, or the nature and extent,
of the sentence, but not so as to enhance the
same—
(c) in an appeal for enhancement of sentence—
(i) reverse the finding and sentence and acquit or
discharge the accused or order him to be retried by a Court competent to try the offence,
or
(ii) alter the finding maintaining the sentence, or
26
(iii) with or without altering the finding, alter the
nature or the extent, or, the nature and
extent, of the sentence, so as to enhance or
reduce the same;
(d) in an appeal from any other order, alter or reverse
such order;
(e) make any amendment or any consequential or
incidental order that may be just or proper:
Provided that the sentence shall not be enhanced
unless the accused has had an opportunity of showing
cause against such enhancement:
Provided further that the Appellate Court shall not
inflict greater punishment for the offence which in its
opinion the accused has committed, than might have
been inflicted for that offence by the Court passing the
order or sentence under appeal.”
6.1 Chapter XXIX of the CrPC deals with appeals. The said
Chapter delineates the statutory framework governing appeals.
Section 372 unequivocally declares that no appeal shall lie from
any judgment or order of a criminal court except as provided for
by the CrPC itself or by any other law for the time being in force.
In fact, Section 372 of the CrPC speaks of an embargo on the filing
of an appeal from any judgment or order of a criminal court except
as provided for by the CrPC or by any other law for the time being
in force. Section 372 is couched in a negative language and it
states that no appeal shall lie from any judgment or order of a
criminal court except as provided for by the CrPC or by any other
law for the time being in force. Section 372 is a preface to the
27
chapter on appeals which in substance states that appeal can be
filed only in accordance with what has been stated in the
provisions to follow Section 372. The proviso was introduced to
Section 372 by the Code of Criminal Procedure (Amendment) Act,
2008 (Act 5 of 2009), which came into effect from 31.12.2009. By
virtue of this amendment, a limited right of appeal has been
conferred upon the victim of an offence. On a reading of the proviso
to Section 372, it is apparent that a victim shall have a right to
prefer an appeal against: (i) any order passed by the court
acquitting the accused or (ii) convicting for a lesser offence or (iii)
imposing inadequate compensation. Such appeal shall lie to the
court to which an appeal ordinarily lies against the order of
conviction of such court. In fact, with effect from 31.12.2009 when
clause (wa) to Section 2 was inserted to the definition of victim,
proviso to Section 24 was also added which provides that the Court
may permit the victim to engage an advocate of his choice to assist
the prosecution under the said sub-section.
6.1.1 Further, with effect from 31.12.2009, Section 357A and
Section 357B were inserted to the CrPC in the form of victim
compensation scheme for providing compensation to the victim or
his dependants who have suffered loss or injury as a result of the
28
crime and who require rehabilitation. The compensation payable
by the State Government under Section 357A is in addition to the
payment of fine to the victim of offences under Section 326A,
Section 376AB, Section376D, Section 376DA and Section 376DB
of the Indian Penal Code. Also, Section 357C states that all
hospitals, public or private, whether run by the Central
Government, the State Government, local bodies or any other
person, shall immediately, provide the first-aid or medical
treatment, free of cost, to the victims of any offence covered under
the aforesaid Sections.
6.2 While Section 374 of the CrPC deals with appeals from
convictions with which we are not concerned in this case, what is
of relevance is Section 378 which deals with appeal in case of
acquittal. The remedy of an appeal against an acquittal is couched
in certain conditions which are evident on a reading of subsections (4) and (5) of Section 378 of the CrPC vis-Ã -vis an appeal
that could be filed by a complainant. However, the Parliament in
its wisdom amended Section 372 of the CrPC by adding a proviso
thereto by virtue of the Code of Criminal Procedure (Amendment)
Act 2008 (5 of 2009), (with effect from 31.12.2009). It is hence
necessary to unravel the definition of victim in clause (wa) of
29
Section 2 of the CrPC which was also introduced along with proviso
to Section 372 of the CrPC. A victim is defined to mean 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;
6.3 The expression injury, as defined in Section 44 of the Indian
Penal Code, 1860 includes:
“Any harm whatever illegally caused to any person, in
body, mind, reputation or property.”
6.3.1 Similarly, Black’s Law Dictionary defines injury to include
property damage, bodily harm, or violation of a legal right.
6.3.2 Additionally, the United Nations General Assembly’s
Declaration of Basic Principles of Justice for Victims of Crime and
Abuse of Power (1985) provides a broad and inclusive definition of
victim. According to Article 1 of the Declaration:
“Victim means persons who, individually or
collectively, have suffered harm through acts or
omissions which involve physical or mental injury,
emotional distress, economic loss or substantial
impairment of their fundamental rights.”
6.3.3 Further, Article 2 extends the definition of victim to include
immediate family members, dependents, or those who have
intervened to assist a victim in crisis.
30
6.4 On a reading of the definition of ‘victim’, it is clear that the
said expression is initially exhaustive and thereafter inclusive. The
expression ‘victim’ means a person who has suffered any loss or
injury. The loss or injury could be either physical, mental, a
financial loss or injury. The expression injury could also be
construed as a legal injury in a wider sense and not just a physical
or a mental injury. The loss or injury must be caused by reason of
an act or omission for which the accused person has been charged.
Thus, it can be both by a positive act or negatively by an omission
which is at the instance of the accused and for which such accused
has been charged. Further, the expression ‘victim’ also includes
his/her guardian or legal heir in the case of demise of the victim.
6.5 Thus, the expression ‘victim’ has been couched in a broad
manner so as to include a person who has suffered any loss or
injury. The expressions ‘loss’ or ‘injury’ themselves are of a very
broad import which expressions also enlarge the scope of the
expression ‘victim’. Further, the expression ‘victim’ includes not
only the person who has suffered any loss or injury caused by
reason of any act or omission for which the accused person has
been charged but also includes his or her guardian or legal heir
which means that the definition of victim is inclusive in nature.
31
6.6 Having regard to the insertion of the proviso to Section 372
of the CrPC, we find that in the case of a victim who seeks to file
an appeal, he or she could proceed under the proviso to Section
372 of the CrPC in the circumstances mentioned therein and need
not prefer an appeal by invoking Section 378(4) of the CrPC which
is in respect of appeals to be filed by a complainant. It may be that
the complainant is a victim in certain cases and therefore, the
victim has the right to file an appeal under the proviso to Section
372 of the CrPC and need not proceed under Section 378(4) of the
CrPC. However, if the complainant is not a victim and intends to
file an appeal, in such a case a complainant would have to proceed
under Section 378 of the CrPC which circumscribes the right to
file an appeal by virtue of the conditions which are stipulated
under the said Section.
6.6.1 The word ‘victim’ is derived from the latin word “victima”
and originally contained the concept of sacrifice. In more
contemporary times, the term ‘victim’ has been expanded to imply
a victim of war, an accident, a scam, etc. As a scientific concept,
according to Criminologist B. Mendelsohn (1976), a victim may be
viewed as containing four fundamental criteria which are as
follows:
32
• The nature of the determinant that causes the suffering. The
suffering may be physical, psychological, or both depending on
the type of injurious act.
• The social character of the suffering. This suffering originates
in the victim’s and others’ reaction to the event.
• The nature of the social factor. The social implications of the
injurious act can have a greater impact, sometimes, than the
physical or psychological impact.
• The origin of the inferiority complex. This term, suggested by
Mendelsohn, manifests itself as a feeling of submission that
may be followed by a feeling of revolt. The victim generally
attributes his injury to the culpability of another person.
Victimology thus is a social-structural way of viewing crime
and the law and the criminal and the victim. Insofar as the injury
is concerned apart from there being short time and long time
physical injuries, there could also be economic or financial loss
which are also injuries within the meaning and definition of victim
under clause (wa) of Section 2 of the CrPC.
6.7 While analysing the expression ‘victim’, it is noted that it is
with reference to an accused person who has been charged. Under
33
the CrPC, the expression charge is defined under clause (b) of
Section 2 which reads as under:
2. Definitions.—In this Code, unless the
context otherwise requires,—
xxx
(b) “charge” includes any head of charge when the
charge contains more heads than one;
6.7.1 Besides the omnibus meaning, the CrPC does not define
what a charge is. However, judicial pronouncements tell us that a
charge is actually a precise formulation of the specific accusation
made against a person who is entitled to know its nature at the
earliest stage. The charge is against a person in respect of an act
committed or omitted in violation of penal law forbidding or
commanding it. In other words, a charge is an accusation made
against a person in respect of offence alleged to have been
committed by him, vide Esher Singh vs. State A.P., (2004) 11
SCC 585. In Birichh Bhuian vs. State of Bihar, AIR 1963 SC
1120, this Court observed that a charge is not a mere abstraction
but a concrete accusation against a person in respect of an offence
and that joinder of charges is permitted under certain
circumstances, whether joinder is against one person or different
persons.
34
6.7.2 In Advanced Law Lexicon by P Ramanatha Aiyar, 6th
Edition, Volume I, a charge is defined to mean an expression as
applied to a crime, sometimes used in a limited sense, intending
the accusation of a crime which precedes a formal trial; to mean a
person charged with an accusation of a crime. In a fuller and more
accurate sense, the expression charge includes the responsibility
for the crime. As a formal complaint, a charge signifies an
accusation, made in a legal manner of legal conduct, either of
omission or commission by the person charged. A person charged
with a crime means something more than being suspected or
accused of a crime by popular opinion or rumour and implies that
the offence has been alleged against the accused parties according
to the forms of law. The purpose of a charge is to tell an accused
person as precisely and consciously as possible of the matter with
which he is charged with. Thus, the expression charge includes the
element of offence and also reference to the person who is alleged
to have committed the offence.
7. For the purpose of applying the aforesaid discussion to the
present case, the following Sections of the Act are relevant and are
extracted as under:
“138. Dishonour of cheque for insufficiency, etc., of
funds in the account.— Where any cheque drawn by a
35
person on an account maintained by him with a banker
for payment of any amount of money to another person
from out of that account for the discharge, in whole or in
part, of any debt or other liability, is returned by the bank
unpaid, either because of the amount of money standing
to the credit of that account is insufficient to honour the
cheque or that it exceeds the amount arranged to be paid
from that account by an agreement made with that bank,
such person shall be deemed to have committed an offence
and shall, without prejudice to any other provision of this
Act, be punished with imprisonment for a term which may
be extended to two years, or with fine which may extend to
twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply
unless—
(a) the cheque has been presented to the bank within a
period of six months from the date on which it is drawn
or within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque,
as the case may be, makes a demand for the payment
of the said amount of money by giving a notice in
writing, to the drawer of the cheque, within thirty days
of the receipt of information by him from the bank
regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment
of the said amount of money to the payee or, as the
case may be, to the holder in due course of the cheque,
within fifteen days of the receipt of the said notice.
Explanation.—For the purposes of this section, “debt or
other liability” means a legally enforceable debt or other
liability.
139. Presumption in favour of holder.— It shall be
presumed, unless the contrary is proved, that the holder
of a cheque received the cheque of the nature referred to
in section 138 for the discharge, in whole or in part, of any
debt or other liability.
xxx
36
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 any body 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),—
37
(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:
38
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.”
7.1 In the context of the present case, 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
39
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.
7.2 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’ being used in different context would remind us of what
has been cited by this Court in Directorate of Enforcement vs.
Deepak Mahajan, (1994) 3 SCC 440 wherein Chapter IV of the
book titled The Loom of Language by Frederick Bodmer has been
cited in the following words:
“Words are not passive agents meaning the same thing
and carrying the same value at all times and in all
contexts. They do not come in standard shapes and
sizes like coins from the mint, nor do they go forth with
a decree to all the world that they shall mean only so
much, no more and no less. Through its own
particular personality, each word has a penumbra of
meaning which no draftsman can entirely cut away. It
refuses to be used as a mathematical symbol.”
The expression ‘accused of any offence’ would include within
its ambit only a person against whom formal accusation relating to
40
commission of offence has been levelled which in the normal course
may result in his prosecution.
7.3 When is an accused charged of an offence under Section 138
of the Act would be relevant. 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.
7.4 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
41
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.
7.5 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
42
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.
7.6 As already noted, the 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.
7.7 In the context of offences under the 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
43
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.
7.8 In the case of an offence alleged against an accused under
Section 138 of the Act, we are of the view that the complainant is
indeed the 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.
7.9 In this context, we wish to state 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 Act.
Symmetrical to a victim of an offence, a victim of a deemed offence
44
under Section 138 of the 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
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 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.
7.10 Section 378 of the CrPC is a specific provision dealing with
appeals. 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, with which we are
45
not concerned in the instant case. 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 where the complainant is a public servant and sixty days
in every other case, computed 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.
7.11 A reading of section 378 would clearly indicate that in case
the complainant intends to file an appeal against the order of
acquittal, his right is circumscribed by certain conditions
precedent. When an appeal is to be preferred by a complainant,
the first question is, whether, the complainant is also the victim or
only an informant. If the complainant is not a victim and the case
is instituted upon a complaint, then sub-section (4) requires that
46
the complainant must seek special leave to appeal from an order of
acquittal from the High Court. As noted under sub-section (6), if
the application under sub-section (4) for grant of special leave to
appeal from the order of acquittal is refused, no appeal from that
order of acquittal would lie, inter alia, under sub-section (1) of
Section 378. However, if the complainant is also a victim, he could
proceed under the proviso to Section 372, in which case the rigour
of sub-section (4) of Section 378, which mandates obtaining special
leave to appeal, would not arise at all, as he can prefer an appeal
as a victim and as a matter of right. Thus, if a victim who is a
complainant, proceeds under Section 378, the necessity of seeking
special leave to appeal would arise but if a victim whether he is a
complainant or not, files an appeal in terms of proviso to Section
372, then the mandate of seeking special leave to appeal would not
arise.
7.12 The reasons for the above distinction are not far to see and
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
47
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
48
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.
8. The right to prefer an appeal is no doubt a statutory right and
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.
9. In the circumstances, we find that 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 already noted, 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 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 which 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, 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 in our
view, 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.
10. As already noted, the proviso to Section 372 of the CrPC was
inserted in the statute book only with effect from 31.12.2009. The
object and reason for such insertion must be realised and must be
given its full effect to by a court. In view of the aforesaid discussion,
we hold 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.
11. In the result, the impugned common order dated 12.06.2024
in Crl. O.P. Nos.929, 931 and 1034 of 2024 in Crl. A. SR. Nos.1282,
1300 and 1321 of 2024 is set aside. Liberty is reserved to the
appellant herein to file the appeal(s) having regard to the proviso
to Section 372 of the CrPC within four months from today.
12. Should the appeal(s) be filed within the period of four months
from today, the issue of limitation may not be raised by the
respondents herein or by the appellate court.
These appeals are allowed in the aforesaid terms.
…………………………………………..J.
(B. V. NAGARATHNA)
…………………………………………..J.
(SATISH CHANDRA SHARMA)
NEW DELHI;
APRIL 08, 2025.
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