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of <h1>Appellant permitted to withdraw appeal and given 60 days to file fresh appeal challenging 29/09/2021 judgment</h1> <h3>Ghanshayam Tripathi Versus Ranjan Prasad</h3> HC allowed the appellant to withdraw the present appeal and granted liberty to file an appeal against the judgment dated 29/09/2021 before the concerned ... Dishonour of Cheque - acquittal of respondent/accused of the charge under section 138 of the Negotiable Instrument Act, 1881 - leave to appeal under section 378(4) of the Cr.P.C. has been granted by this Court - complainant qualifies as a 'victim' within the meaning of Section 2(wa) of the Cr.P.C., thereby entitling the complainant to prefer an appeal under the proviso to Section 372 of the Cr.P.C. as a matter of right or not - HELD THAT:- This Court is inclined to permit the appellant to withdraw this appeal by granting him liberty to prefer the appeal against the judgment/order dated 29/09/2021 before the concerned Sessions Judge within a period of 60 days from the date of receipt of copy of this order. Order accordingly. It is clarified that if such an appeal is filed before the concerned Session Judge within the time given by this Court, it would not insist upon the limitation while deciding the same and will proceed to decide the same in accordance with law. The record of the case may be sent back to the concerned J.M.F.C. forthwith. Appeal disposed off. ISSUES PRESENTED AND CONSIDERED 1. Whether a complainant in a complaint under Section 138 of the Negotiable Instruments Act, 1881 qualifies as a 'victim' within the meaning of Section 2(wa) of the Cr.P.C., thereby entitling the complainant to prefer an appeal under the proviso to Section 372 of the Cr.P.C. as a matter of right. 2. Whether, if a complainant has already filed an appeal under Section 378(4) Cr.P.C. after obtaining special leave, he may withdraw that appeal and be granted liberty to prefer an appeal under the proviso to Section 372 of the Cr.P.C. before the Sessions Court (corresponding provision under BNSS), and whether limitation will be insisted upon in such circumstance. ISSUE-WISE DETAILED ANALYSIS Issue 1: Qualification of a Section 138 complainant as a 'victim' and entitlement to appeal under proviso to Section 372 Cr.P.C. Legal framework: Section 138 of the Negotiable Instruments Act treats dishonour of cheque as a deemed offence; Section 200 Cr.P.C. governs complaints; Section 2(wa) Cr.P.C. defines 'victim'; proviso to Section 372 Cr.P.C. (inserted w.e.f. 31.12.2009) permits a victim to prefer an appeal on specified grounds as of right; Section 378(4) Cr.P.C. provides for complainant to seek special leave to appeal from an order of acquittal. Precedent treatment: The Court relied upon the recent Supreme Court pronouncement (referred to in the judgment) which held that a complainant under Section 138 is a victim under Section 2(wa) Cr.P.C. and therefore can avail the proviso to Section 372 to file an appeal as of right; that decision was applied and not distinguished. Interpretation and reasoning: The Court adopted the Supreme Court's reasoning that a complainant under Section 138 suffers economic loss by reason of cheque dishonour and thus is the aggrieved/victim. The proviso to Section 372 was legislated to afford victims an unconditional right to appeal without undergoing conditions applicable to complainants under Section 378(4). The absence of active State involvement in private complaints under Section 138 reinforces construing the complainant as victim. The legislative scheme (insertion of proviso to Section 372 without amending Section 378) manifests Parliament's intent to grant superior appellate rights to victims compared to a complainant's constrained route under Section 378(4). Ratio vs. Obiter: The determination that a Section 138 complainant is a 'victim' entitled to appeal under the proviso to Section 372 is treated as ratio of the cited Supreme Court authority and is adopted as binding guiding principle by the Court in the present matter. Conclusions: A complainant under Section 138 of the Act qualifies as a victim under Section 2(wa) Cr.P.C. and may prefer an appeal under the proviso to Section 372 of the Cr.P.C. as of right without seeking special leave under Section 378(4). This applies irrespective of whether the victim is also the complainant; both may elect the victim route under the proviso. Issue 2: Withdrawal of appeal filed under Section 378(4) and grant of liberty to prefer appeal under proviso to Section 372 before Sessions Judge; treatment of limitation Legal framework: Section 378(4) Cr.P.C. permits complainant, upon obtaining special leave, to present an appeal to the High Court; proviso to Section 372 Cr.P.C. allows victims to prefer an appeal as of right before the appellate forum; limitation periods for filing under Section 378(4) differ (sixty days generally) but proviso to Section 372 prescribes its own scope. Precedent treatment: The Court relied on the Supreme Court's liberty granted in the cited authority permitting the complainant to pursue remedy under Section 372 proviso (or corresponding provision under BNSS) even if earlier steps were taken under Section 378(4); the High Court applied that approach. Interpretation and reasoning: Given the binding principle that a Section 138 complainant is a victim and can proceed under the proviso to Section 372, the Court found it appropriate to permit withdrawal of the pending appeal under Section 378(4) and to grant liberty to prefer an appeal before the Sessions Judge under the proviso to Section 372. The Court also balanced procedural fairness by specifying a time limit (60 days from receipt of the order copy) to file the appeal before the Sessions Judge and directed that limitation will not be insisted upon if the appeal is filed within that period. The respondent's counsel indicated no objection to not insisting on limitation, which the Court recorded and implemented. Ratio vs. Obiter: The Court's direction permitting withdrawal of an appeal under Section 378(4) with liberty to refile under proviso to Section 372 and its non-insistence on limitation (subject to filing within 60 days) constitutes an applied procedural disposition based on the accepted legal principle from the Supreme Court decision; the core legal holding remains that the victim-route under Section 372 is available and superior. The procedural grant of liberty and the specific 60-day directive are orders tailored to the case (operational rather than novel ratio). Conclusions: The appellant/complainant was permitted to withdraw the High Court appeal filed under Section 378(4) and given liberty to prefer an appeal before the Sessions Judge under the proviso to Section 372 within 60 days of receipt of the High Court order. If such appeal is filed within the prescribed period, the Sessions Judge was directed not to insist upon limitation and to decide the appeal on merits in accordance with law. Ancillary Directions and Administrative Matters Legal framework and reasoning: On ancillary reliefs, the Court allowed return of the certified copy of the impugned judgment to the appellant by accepting an attested photocopy in substitution, and directed transmission of the record back to the trial court (J.M.F.C.). These are procedural/administrative orders to facilitate exercise of the granted liberty. Conclusion: Registry ordered to return certified copy on production of attested photocopy; trial court record to be returned forthwith to the J.M.F.C.; appeal disposed of accordingly.
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