A filed a cheque bounce complaint under Section 138 Negotiable Instruments Act against B. However, the Magistrate Court acquitted B. Can A file appeal before Sessions Court invoking provisio to Section 372 Cr.P.C. or should he file appeal with special leave before High Court under Section 378(4) CrPC is the query.?
Section 372 CrPC proviso states 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.’
This means if the complainant comes under the definition of ‘victim’, then he can file an appeal before Sessions Court (since it is the Court to which an appeal ordinarily lies against the order of conviction by Magistrate Court).
According to Section 2(wa) CrPC “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.
So the next question is whether a complainant under Section 138 NI Act is a ‘victim’ defined under Section 2(wa) CrPC. The answer to this question can be found in a division bench judgment of Andhra Pradesh High Court in P.Vijaya Laxmi V. S.P.Sravana 2018(2) ALT (Crl.) 35 (DB)(A.P)
The High Court noted the use of the word charged in Section 2(wa).
This, according to the High Court, means that it is only in cases where an accused is charged of an offence and he is acquitted of such charge, the person, who suffered any loss or injury caused by such alleged act or omission of the accused which formed part of the charge, would be a victim for the purpose of Section 2(wa) of the Code.
The court noted that an offence under Section 138 NI Act attracts imprisonment for a term which may extend upto two years only, such a complaint case would be only a summons case, wherein no charge requires to be framed. Under Chapter XIX CrPC (trial of warrant cases) framing of a charge is required under Section 240, while no such procedure is contemplated under Chapter XX of the Code, dealing with trial of summons cases. As the accused in a cheque-dishonour case under Section 138 NI Act is not charged, the complainant in such a case, though he may suffer loss and injury by the omission of the accused to pay his dues, cannot be brought within the ambit of a victim as defined in Section 2(wa) CrPC, the court observed. Thus it was held that such a complainant would not be entitled to avail the remedy of appeal under the proviso to Section 372 of the Code and must continue to avail the special remedy of appeal provided under Section 378(4) of the Code after obtaining special leave.
Under Section 378(4) CrPC, If 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.
Same view has been taken by the following High Courts:
Kerala High Court in Omana Jose v. State of Kerala ILR 2014 (2) Ker. 669 :: 2014 (2) KLJ 620 :: 2014 (2) KLT 504 :: 2014 (2) KHC 277 :: 2015 Cri LJ 2784
Bombay High Court (DB) in Kushal Kawaduji Singanjude vs Ramnarayan Durgaprasad Agrawal;
Allahabad High Court (DB) in Anil Kumar Agarwal vs State Of U.P.
Calcutta High Court in Todi Investors v. Ashis Kr. Dutta 2022 LiveLaw (Cal) 327