Supreme Court Recognizes Complainant as Victim, Grants Unconditional Appeal Right in Cheque Bounce Acquittals

 Background

In a significant judgment delivered on April 8, 2025, the Supreme Court of India addressed a crucial legal question: Can a complainant in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881, appeal an acquittal order as a "victim" under the proviso to Section 372 of the Code of Criminal Procedure (CrPC), without seeking special leave under Section 378(4) of the CrPC? This issue arose in the case of M/s. Celestium Financial v. A. Gnanasekaran & Others, where the appellant, a financial firm, sought to challenge the acquittal of borrowers who had defaulted on multiple loans and whose cheques were dishonoured due to insufficient funds.

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Factual Matrix

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Rajasthan HC: Complainant in Case Under S 138 of NI Act is victim as per s 2(y) of BNSS, he can file appeal against acquittal before Sessions Court

This application for grant of leave to file appeal has been filed by complainant-Vikram Manshani against the judgment dated 12.02.2024 passed in Criminal Case No.3108/2016, where-underthe sole respondent has been acquitted of the charge under

Section 138 of the Negotiable Instruments Act.

It is not disputed that the cheque was issued in favour of the

applicant. Therefore, the applicant was victim of the crime as

defined under Section 2(y) of the Bharatiya Nagarik Suraksha

Sanhita, 2023 (BNSS), which reads as follows :

Section 2(y) “Victim” means a person who has

suffered any loss or injury caused by reason of

the act or omission of the accused person and

includes the guardian or legal heir of such

victim.”

If such complainant, is not a victim as defined above then,

he would be required to prefer leave application before the High

Court for preferring appeal against acquittal. However, if the

complainant is a victim of the crime, he/she shall have right

under Proviso to Section 413 BNSS to prefer appeal against

acquittal, conviction for a lesser offence or imposing inadequate

compensation.

The appellant would be at liberty to present an appeal against acquittal before concerned Sessions Judge within a period of 15 days from the date of this order.

 HIGH COURT OF JUDICATURE FOR RAJASTHAN

JODHPUR

S.B. Crml Leave To Appeal No. 384/2024

Vikram Manshani Vs Praveen Sharma

Coram:  MR. JUSTICE BIRENDRA KUMAR

Dated: 06/08/2024.

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Whether appeal from conviction given by assistant session Judge lie to session court?

On perusal of the impugned judgment and order it reveals that the aforesaid order was passed by learned Assistant Sessions Judge and the Section 374(3)(a) of the Code provides that the appeal from convictions given by the learned Assistant Sessions Judge will lie to the Court of Sessions. Although, the present appeal is not intended against the order of conviction but the same provision have to follow as regards the forum to whom the appeal lies. Obviously, against the order of the learned Assistant Sessions Judge appeal will not lie to the High Court by skipping the forum.

In the High Court of Gauhati

(Before Rumi Kumari Phukan, J.)

Akhtar Mirza v. State of Assam

Crl.L.P 136/2018

Decided on May 14, 2019

Citation: 2019 SCC OnLine Gau 2295 : (2019) 6 Gau LR 386

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Whether court should direct deposit of fifty percent of cheque amount at the time of suspension of sentence pending appeal?

Hence at the same time, this Court also cannot lose sight of the dictum of law laid down by the Apex Court in case of Dilip S. Dahanukar vs. Kotak Mahindra Ltd. I (supra) and also in the above said order of this Court that direction to deposit 50% of compensation amount virtually defeats statutory right of appeal available to the accused. Therefore, though the quantum of amount is in the discretion of appellate Court, at the same time it has to be reasonable.

IN THE HIGH COURT OF BOMBAY

Criminal Writ Petition No. 561 of 2016

Decided On: 17.02.2016

 Sumeet Gupta Vs.  State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Dr. Shalini Phansalkar Joshi, J.

Citation: 2016 ALLMR(CRI) 4371

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Notes on appeal to Session court

The term appeal signifies the right of carrying a particular case from an inferior to a superior court with a view to ascertaining whether judgment of lower court is sustainable.

S 372 of CRPC{S 413 of BNNS}. 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 or 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.[ Inserted by Amendment Act 2008]

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Whether appeal against acquittal in bailable and non-cognizable offences is maintainable before session court?

It is not disputed that Sections 41 and 42 of the Indian Forest Act are bailable and non-cognizable offences. Similar is the position with Section 120-B of the Indian Penal Code, keeping in view that the main offences for the commission of which the accused were charged are bailable and non-cognizable. In these circumstances, it is but apparent that the appeal filed by the State against the judgment of acquittal passed by the learned trial Court in the Court of learned Sessions Judge, Mandi was not maintainable and was hit by provisions of Clause (b) of Sub-section(1) of Section 378 of the Code of Criminal Procedure. 

In the High Court of Himachal Pradesh at Shimla

(Before Ajay Mohan Goel, J.)

Pushap Raj and another v. The State of Himachal Pradesh 

Cr. Revision No. 168 of 2010

Decided on March 16, 2017

Citation: 2017 SCC OnLine HP 282

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Whether appellate court can take additional evidence without recording reasons?

Section 391 of the Code, insofar as relevant for the purpose of this appeal reads as follows:

Appellate Court may take further evidence or direct it to be taken-

(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate. (2)-(4)....

7. A bare reading of the provision makes it clear that the Section invests the appellate Court with the power to record additional evidence, provided it is satisfied, for the reasons to be recorded, that additional evidence in the matter is necessary. Since Section 391 of the Code is an exception to the general rule that an appeal should be decided on the evidence which was before the Trial Court, power under the Section has to be exercised with caution and circumspection so as to meet the ends of justice and not as a matter of course.

8. In Rambhau and Anr. v. State of Maharashtra MANU/SC/0309/2001 : 2001CriLJ2343 , this Court has held that the object of Section 391 is not to fill in lacuna, but to subserve the ends of justice. Admission of additional evidence should not operate in a manner prejudicial to the prosecution or the defence. Though wide discretion is conferred on the Court, the same has to be exercised judicially and the legislature had put the safety valve by requiring recording of reasons. Thus, recording of reasons is a condition precedent for exercise of power under Section 391 of the Code and an order bereft of reasons would tantamount to non-application of mind, rendering the exercise of power under the Section, bad in law.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 719 of 2009 (Arising out of SLP(Crl.) No. 7576/2008)

Decided On: 13.04.2009

Ajay Kumar Garg Vs. Gaurav and Anr.

Hon'ble Judges/Coram:

D.K. Jain and R.M. Lodha, JJ.

Citation: (2017) 11 SCC 469.

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Whether complainant can file appeal against acquittal before High court?

 The Petitioner herein was the Complainant on behalf of the
Bank. He was Auditor and in his capacity as being the Auditor, he had
lodged the First Information Report against Respondent No.2. Therefore,
though he is the author of the complaint as is understood under Section
2(d) of the Code of Criminal Procedure, he, as an individual, would not
fall within the definition of victim under Section 2(wa). Therefore, though
the right of the Petitioner to file a complaint or lodge an FIR can be
recognized,   yet,   insofar   as   preferring   an   appeal   against   the   order   of
acquittal is concerned, the right of the Petitioner as a Bank under the
proviso to Section 372 will have to be read within the scope of Section
378(3), (4) and (5) of the Code of Criminal Procedure.
36 In view of the above conclusion, the Petitioner could not have
preferred an appeal before the learned Additional Sessions Judge, Hingoli.

The Petitioner could have filed an appeal before this Court in its capacity
of being the Complainant/ victim by relying upon the proviso to Section
372 of the Code of Criminal Procedure.
37 At   this   juncture,   the   learned   Advocate   for   the   Petitioner
submits that the Petitioner be granted leave to convert this Criminal Writ
Petition   into   a   Criminal   Appeal   and   the   Petitioner   would   prefer   an
application for seeking leave of this Court to entertain the said appeal. The
Petitioner   would   also   file   an   application   making   out   a   case   for
condonation of delay in the light of the fact that the Petitioner has lost
precious time in it's Criminal Appeal dated 04.01.2013 erroneously filed
before the learned Additional Sessions Judge as well as time spent by the
Petitioner in this Court till the date of this order.
38 The learned Advocate for Respondent No.2 has opposed the
request put forth by the Petitioner as above. 
39 However, considering the peculiar facts of this case and after
having concluded that the Petitioner was required to prefer an appeal
before this Court under the proviso to Section 372 r/w Section 378 of the
Code of Criminal Procedure, I am inclined to accept the request of the
Petitioner.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO. 968 OF 2013

Parbhani District Central Bank Ltd.,V The State of Maharashtra.

  CORAM:  RAVINDRA V. GHUGE, J.
DATE :­ 23rd June, 2016
Citation: 2016 ALLMR(CRI)4822

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When accused should not be permitted to adduce additional evidence at appellate stage?

From a bare perusal of the above provisions, it is clear that the additional evidence at appellate stage can be taken only when the Appellate Court thinks it necessary after assigning reasons. From the above observation of the Appellate Court, it is clear that opportunity for defence evidence was given to the petitioner appellant accused by the trial court during trial and the co-ordinate Bench of this court also, directed that the petitioner can examine handwriting expert on its own expenditure at the time of defence evidence but he failed to examine the handwriting expert at his own and pleaded that he is not interested to lead defence evidence at the time of examination u/S. 313, Cr.P.C.

8. Therefore, there is no reason to allow the application of the petitioner appellant accused at appellate stage. Learned Appellate Court also dismissed the application after considering all the arguments of the appellant accused which does not require any interference.

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

S.B. Criminal Misc. Petition No. 6537 of 2015

Decided On: 23.02.2016

Kailash Agarwal
Vs.
State of Rajasthan and Ors.

Coram:Banwari Lal Sharma, J.

Citation: 2016 CRLJ4318 Raj

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Leading Judgment on right of victim to file appeal against acquittal of accused

In Parmeshwar Mandal, a Division Bench of the Patna High Court also dealt with similar issues and answered the queries as follows:

"In the circumstances, after consideration of the entire matter, conclusions of this Court are as follows:-

(1) - By virtue of the Proviso, as inserted in Section 372 of the Code of Criminal Procedure, 1973 by the Criminal Procedure Code (Amendment) Act, 2008 (Act 5 of 2009), a "victim" has been put at a higher pedestal, than a prosecuting agency or a complainant, in the matter of preferring an appeal against any order of a criminal court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. This Proviso gives an unqualified "right" to a "victim" to prefer an appeal in its terms, as against the enabling Sections 377 and 378, which only give liberty to a District Magistrate, the State Government, the Central Government and the complainant, as the case may be, to prefer an appeal against an order of sentence on the ground of its inadequacy or against an order of acquittal.

(2) - The right of a "victim" to prefer an appeal in terms of the said proviso to Section 372 is an unqualified right and no "leave to appeal" or "special leave" is required to be obtained by him/her for the purpose, as required by the State or the complainant for maintaining an appeal in terms ofSection 378 of the Code.

(3) - No limitation of time has been provided by the Legislature for exercise of such a right of appeal by the "victim" in terms of the said Proviso. Hence, in the fact and circumstances of each case, the Court has to determine as to whether the appeal was entertainable, or not, on the ground of absence of bonafide explanation for delay by the appellant. The limitation laid down by the Full Bench of Punjab and Haryana High Court is a judicial fiat and not based on interpretation of the provisions of the Code or the Limitation Act, 1963. Hence the same is applicable only within the territorial jurisdiction of that High Court and not beyond.

(4) - However, in view of the legal presumption of innocence in favour of the accused, the yardsticks laid down by judicial pronouncements for consideration of appeals under Section 378shall be applicable in case of an appeal under he said proviso to Section 372.

(5) - The expression - long after the present incident - used under brackets by the Apex Court in paragraph 5 of its judgment in case of National Commission for Women Vs. State of Delhi and another [AIR 2011 SC (Sup.) 392] : [(2010) 122 SCC 599] is only an obiter dictum of the Court and it does not lay down a law in terms of Article 141 of the Constitution of India.

(6) - Proviso to Section 372 of the Code came into operation w.e.f. December 31, 2009. Hence, in absence of any legislative intent to the contrary, in all cases, in which a judgment and order has been passed by a criminal court on and after that date, a right accrues to the "victim" to prefer appeal in terms of the said Proviso, irrespective of the date of occurrence and any subsequent event in the case prior to such judgment and order.

(7) - If the subject of the crime is dead or incapacitated to the extent or suffers from such a disability that he/she cannot take steps to exercise his/her right under the Proviso to Section 372, any of his/her next of kin, who can establish before the Court, to its satisfaction, that the crime had caused "loss" or "injury" to him/her also, besides to the subject of the crime, can maintain an appeal under the said proviso.

(8) - The "loss" and "injury" to an appellant before it (if he/she is other than the de-facto sufferer) has to be assessed by the Court in each and every case in the backdrop of definition of "injury" Patna High Court CR. APP (DB) No.1078 of 2012 dt.26-11-2013 provided in Section 44 of the Indian Penal Code, and not beyond it, before entertaining the appeal, in terms of the proviso toSection 372 on merits.

(9) - If any person prefers an appeal in terms of the proviso to Section 372, solely on the basis of his status as a "guardian" or a "legal heir", he/she will have to establish the legal basis of his/her such status in reference to the law, as may be applicable in the matter, with all its limitations and qualifications, or otherwise also (e.g. judicial order).

(10) - Once an appeal preferred in terms of the said proviso to Section 372, against an order is entertained by an appellate court on merit, to whatever result, no fresh/second appeal by any party/person can/should be entertained against the same order.

(11) - No distinction can be made between a case instituted by a complainant/ informant with the police and by a complainant before the Court directly, and an absolute right of a victim (a complainant or not) to file an appeal under Proviso to Section 372 does not get fettered by any other section of the Code contained in Chapter XXIX, which includes Section 378."

31. Since, subsequent to the Full Bench reference, the Supreme Court in Satyapal Singh interpreted these provisions, we are duty bound to follow the same to the extent it binds us. With that in mind and in the light of the above legal precedents and the discussion, we answer the questions posed by the Referral Judge as follows:-

(1) A victim of the crime, who has prosecuted an accused by way of a private complaint, has a statutory right of appeal within the limits prescribed under Section 372 of Cr.P.C.

(2) A complainant (in a private complaint), who is not a victim, has a remedy and can file an appeal in the event of acquittal of the accused after obtaining leave to appeal under Section 378(4) of Cr.P.C (3) In a private complaint, even if the victim is not a complainant, he has a right to appeal under the proviso to Section 372 of Cr.P.C., but he has to seek leave as held by the Supreme Court in Satyapal Singh.

(4) The term victim? has been correctly interpreted by the Full Bench of the Delhi High Court in Ramphal and we are in agreement with the same.

(5) A victim (as defined under Section 2(wa) of the Cr.P.C does not cease to be a victim merely because he also happens to be a complainant and he can avail all the rights and privileges of a victim also and (6) The decision of the Single Judge in Selvaraj holding that the term victim? found in Section 372 excludes a complainant, is not legally correct and in a given case, a complainant, who is also a victim, can avail right granted under Section 372 of Cr.P.C.

Madras High Court

S.Ganapathy vs N.Senthilvel on 5 April, 2016

Citation:2016 ALLMR(CRI)JOURNAL492,2017 CRLJ602

Coram 
 Mr.Justice V.RAMASUBRAMANIAN,       
 Mr.Justice N.KIRUBAKARAN     
and 
 Mr.Justice  S.VAIDYANATHAN     

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Whether session court can insist for presence of complainant for hearing of stay application after admitting appeal against conviction in cheque dishonour case?

 Be that as it may, this is a case where the learned Sessions Judge on July 28, 2014

passed an order in connection with Criminal Appeal No. 29/2014 and on that date, the

appeal has been admitted. However, he did not pass any order staying the operation of the

order of sentence and compensation. In all likely, the learned Sessions Judge has

overlooked the provision of sub-Section (2) of Section 357 Cr. P.C. According to the said

provision, if fine is imposed in a case which is subject to an appeal, no such payment shall

be made before the period allowed for presenting the appeal has elapsed, if an appeal be

presented, before the decision of the appeal. Therefore, according to the mandate of law,

since the appeal is admitted, the learned Sessions Judge was bound to stay the realization

of fine. Furthermore, the learned Judge might direct the petitioners to deposit a portion of

the compensation amount in the Trial Court but his approach in non-considering the

question of stay of the order of payment of fine and compensation, unless the complainant

appeared in court, is totally erroneous, improper and not in accordance with law. Judicial

discretion must always be supported by reason and justification and same cannot be

arbitrary and fanciful. When the learned Judge found merits in the appeal and categorically

recorded that there are grounds for admission and admitted the appeal, it is totally unjust

not to consider the question of stay of fine and compensation, more particularly, on the

face of provisions of sub-section 4 of section 357 CrPC. In any event, the learned Judge

should have taken up the matter for consideration of stay of fine and compensation, when

from the postal records, it is found that the complainant was avoiding the court process. 3

 Having regard to above, it is directed within a week from the date of communication

of this order the Appeal court shall dispose of the question of stay of fine and

compensation without insisting presence of the complainant.

In the High Court at Calcutta

Criminal Revisional Jurisdiction

Appellate Side

Present

The Hon’ble Justice Ashim Kumar Roy

CRR No. 3685 of 2014

Nand Kishore Bhagat @ N. K. Bhagat & Anr.

Versus

Biswakantha Dey & Anr.

Judgment on : 16-01-2015

Citation;2015(3)crimes 623 cal

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Appeal against acquittal by complainant of private complaint case is not maintainable under section 372 of the Cr.P.C.

The   decision   of   this   Court   in   the   case   of  Top   Notch 
5.

Infotronix (I) Pvt. Ltd. ..vs.. M/s. Infosoft Systems and ors.; 2011 (6)  
Mh. L. J. 165 in term reveals a view has been taken that word “Victim” 
as defined under section 2 (wa) of the Cr.P.C. relates only to the case 
instituted upon the police report.  It also reveals that appropriate remedy 
for complainant in private case to prefer an appeal against the judgment 
and order of acquittal passed in such case is by way of seeking leave 

under section 378 (4) of the Cr.P.C.   Having regard to the same, the 
appeal presented along with the application for condonation of delay by 
non applicant was misconceived, due to it being not in accordance with 
the provisions of procedural law regarding preferring of appeal against 
judgment and order of acquittal recorded in cases instituted otherwise 
than on police report. 



Criminal Revision Application No. 143/2012
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR

1. Mohd. Azim Sheikh Ibrahim,
Aged 55 years, Occ. Business.
Vs
1. Mehamuda Anjum Mohd. Azim,

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM:­  P. D. KODE, J.

DATED :­  AUGUST 19, 2013
    

Citation; 2014 ALLMR(CRI)991

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Whether Appeal against acquittal is maintainable before session court in cheque dishonour case?

Complainant   in   a
complaint case filed under Section 138 of the Negotiable Instruments Act
is  not  a  victim  within  the meaning  of  Section  2(wa)  of  the  Criminal
Procedure Code.  As such the appeal filed before the Sessions Court under
proviso to Section 372 of the Criminal Procedure Code against the order
of acquittal in a complaint case for the offence punishable under Section
138  of  the Negotiable  Instruments Act was  totally misconceived.   The
learned Additional Sessions Judge should have returned  the appeal  for
being   presented   before   the   appropriate   Forum.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION NO. 1516 OF 2010

Madhav Shriramji Khadse, Vs   Rajiv Ramrao Ghatol,

CORAM:   M.L. TAHALIYANI, J.

DATED: 21­06­2012

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Whether victim can file appeal before session court against order of acquittal of accused?

A proviso shows an exception to the Section that may qualify the main enactment. Ergo, the proviso to Section 372 of the Code of Criminal Procedure shows that no matter what is the position in the Code of Criminal Procedure, the right of appeal is given to the victim and that is not only as provided in the Code. It is an unqualified right and could be exercised not only as provided in the Code (i.e. not only with leave of the Court). It is a right untremmelled by other procedural provisions and requirements - to cite - the leave of the Court. It is, therefore, improper to be shackled by the position of the past in which a victim plays no role at all in the criminal justice system and to say that the victim cannot claim to be on higher pedestal in a criminal prosecution than the State and that such can never been the intention of the legislature. The intention of the legislature is writ large in the proviso which gives the substantive right to prefer three types of appeals only to the victim, no matter what else is provided in the Code.

Victim is not required to apply for or obtain leave of the Court to file any of the appeals under the proviso to section 372 CRPc.

Bombay High Court

Balasaheb Rangnath Khade vs The State Of Maharashtra & Ors on 27 April, 2012

ORAL JUDGMENT (Per Mrs. Roshan Dalvi, J.)

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Whether complainant includes victim for filing appeal against acquittal before session court?

. The whole intention of the legislature in making the amendment Act No.5 of 2009 was to provide relief to the victim of the offence of cruelty, dowry demand and other matrimonial disputes. The intention of the aforesaid amendment cannot be interpreted in such a way that the lady who is victim or sufferer of the offence of cruelty, dowry demand, ill-treatment and torture by her husband and family members, would be compelled to approach the High Court to challenge the order of the acquittal recorded by any lower Court. The intention was further to save the victim lady or her legal heir or guardian from harassment in taking the matters direct to the High Court on the same being acquitted by the trial Court or by the lower appellant court (first appellate court). 

31. The purpose of the said amendment of Act No.5 of 2009 was also to provide easy and early relief to the victim lady keeping her economic condition and other problems in mind. If such a lady, whose husband and in-laws are acquitted in the case under Section 498-A, 323, 504, 506 IPC and 3/4 Dowry Prohibition Act by the trial Court, is compelled to move an application to the High Court that too for seeking to grant the leave to appeal then she would be deprived of her right to get immediate relief in matrimonial case including cruelty caused to her physically, mentally or to her reputation or status in the society. Thus, intention of the legislature in making the aforesaid amendment Act No.5 of 2009 applicable w.e.f. 31.12.2009 is to provide remedy to her by filing criminal appeal against the order of acquittal by the Magisterial Court to the Session Court concerned. 

32. The victim like Smt. Asha Srivastava cannot be deprived of her statutory right to file an appeal before the Sessions Judge concerned against the judgment and order of acquittal just on the basis of technicalities like absence of the word "complaint or complainant" in the proviso to Section 372 Cr.P.C. This is just a technicality. Since the word "complaint" is not mentioned or included in the proviso to Section 372 Cr.P.C., the victim lady should not be compelled to seek the leave to appeal from the High Court.

HIGH COURT OF JUDICATURE AT ALLAHABAD

Ashok Kumar Srivastava And Others vs. State Of U.P. And Another

Case :- APPLICATION U/S 482 No. - 5934 of 2012 

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