Victim in Section 138 NI Act case can directly appeal acquittal u/s 372 CrPC, says interpretation

HC held that, in light of recent SC interpretation of Sections 372 and 378(4) CrPC, a victim in a prosecution under Section 138 Negotiable Instruments Act has a substantive right to file an appeal against acquittal before the Sessions Court under Section 372 CrPC. The complainant's application for leave to appeal against the Magistrate's acquittal was therefore mis-characterized. HC directed the Sessions Judge to treat the pending leave to appeal as a regular victim's appeal under Section 372 CrPC and to assign it to the appropriate court for adjudication on merits. The application was disposed of with these directions.

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1. ISSUES PRESENTED AND CONSIDERED

1.1 Whether an appeal against an order of acquittal in a complaint under Section 138 of the Negotiable Instruments Act, 1881, filed by the complainant/payee, is to be pursued by seeking leave under Section 378(4) of the Code of Criminal Procedure, 1973, or as of right under the proviso to Section 372 Cr.P.C. as a "victim".

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Nature and forum of appeal by complainant/victim in Section 138 NI Act acquittal cases

Legal framework

2.1 The Court considered the interpretation of Sections 372 and 378(4) of the Code of Criminal Procedure, 1973, in light of the definition of "victim" under Section 2(wa) Cr.P.C. and the provisions of Section 138 read with Section 143 of the Negotiable Instruments Act, 1881.

2.2 The Court relied upon the law declared by the Supreme Court in a decision holding that a victim has a right to file an appeal under Section 372 Cr.P.C. before the Court of Sessions, and that the insistence on special leave under Section 378(4) Cr.P.C. for a victim would be contrary to the legislative intent underlying the proviso to Section 372.

Interpretation and reasoning

2.3 The Court noted that the Supreme Court had, after comparative interpretation of Sections 372 and 378(4) Cr.P.C., held that:

(a) A victim of a crime must have an absolute, unconditional right to prefer an appeal which is not subject to any condition precedent, akin to the right of an accused to appeal under Section 374 Cr.P.C.

(b) Parliament, by inserting the proviso to Section 372, created a specific, superior right in favour of the victim to prefer an appeal on specified grounds, without requiring leave, and did not amend Section 378 to circumscribe this right.

(c) In proceedings under Section 138 of the Negotiable Instruments Act, the complainant/payee or holder of the cheque is the person who has suffered the impact of the offence and is therefore the "victim" within the meaning of Section 2(wa) Cr.P.C., read with the proviso to Section 372.

(d) Complaints under Section 138 NI Act are in the nature of private complaints under Section 200 Cr.P.C., and Section 143 NI Act expressly incorporates Cr.P.C. provisions for trial of such offences; the role of the State is "conspicuous by its absence", further reinforcing that the complainant in such cases is the victim.

(e) Requiring such a victim to seek special leave to appeal from the High Court under Section 378(4) Cr.P.C. would run contrary to the intent of Parliament expressed through the proviso to Section 372.

2.4 Applying the above reasoning, and following its own earlier decision adopting the Supreme Court's interpretation, the Court held that an appeal by the complainant in a cheque dishonour case against acquittal lies as of right under the proviso to Section 372 before the Sessions Court, and not by way of a leave to appeal under Section 378(4) before the High Court.

Conclusions

2.5 The complainant in a prosecution under Section 138 of the Negotiable Instruments Act is a "victim" for purposes of Section 2(wa) Cr.P.C. and the proviso to Section 372 Cr.P.C.

2.6 The proper remedy against an order of acquittal in such a case is an appeal under Section 372 Cr.P.C. before the Court of Sessions, which is not conditional upon obtaining leave under Section 378(4) Cr.P.C.

2.7 The application styled as one for leave to appeal under Section 378(4) Cr.P.C. was directed to be treated as an appeal under Section 372 Cr.P.C. and to be placed before the Sessions Judge, who would entrust it to the appropriate Court for disposal.

2.8 The Registry was directed to transmit the complete paperbook and record to the Sessions Judge, and the matter, along with all pending miscellaneous applications, was disposed of accordingly.

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