TaxTMI 
TaxTMI 
2025 (4) TMI 1703
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....tion 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....
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....s. 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. 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, a....
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....e 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. 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 t....
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....nt 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 app....
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....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 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 ....
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....eing 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 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 fil....
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.... 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....
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..... 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 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 ....
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....n 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 Indi....
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....from the date of that order of acquittal. (6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under 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) al....
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....ctim 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 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 I....
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....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 cha....
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.... 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 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 bu....
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.... 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 141. Offences by companies.- (1) If the person committing an offence under section 138 is a company, every pers....
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....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 Mag....
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....r 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 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 S....
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....aid 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 ....
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....rPC 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 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 app....
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.... 372 without mandating any condition precedent to be fulfilled by the victim of an offence, which expression also includes the legal representatives of a deceased victim who can prefer an appeal. On the contrary, as against an order of acquittal, the State, through the Public Prosecutor can prefer an appeal even if the complainant does not prefer such an appeal, though of course such an appeal is with the leave of the court. However, it is not always necessary for the State or a complainant to prefer an appeal. But when it comes to a victim's right to prefer an appeal, the insistence on seeking special leave to appeal from the High Court under Section 378(4) of the CrPC would be contrary to what has been intended by the Parliament by insertion of the proviso to Section 372 of the CrPC. Fourthly, the Parliament has not amended Section 378 to circumscribe the victim's right to prefer an appeal just as it has with regard to a complainant or the State filing an appeal. On the other hand, the Parliament has inserted the proviso to Section 372 so as to envisage a superior right for the victim of an offence to prefer an appeal on the grounds mentioned therein as compared....