Cheque Bounce Complainant Can Appeal as Victim Without Seeking Leave U/S 372 CrPC; Revision Petition Not Maintainable: Kerala High Court
The proviso to Section 372 CrPC confers a substantive right of appeal on a “victim” against an order of acquittal
Justice K. Babu, Kerala High Court
The Kerala High Court has held that a complainant in a cheque dishonour case under Section 138 of the Negotiable Instruments Act, 1881 cannot challenge an acquittal through a criminal revision when a statutory right of appeal is available. The Court clarified that such a complainant qualifies as a “victim” under the Code of Criminal Procedure and can file an appeal as a right under the proviso to Section 372 CrPC without seeking special leave.
The Court undertook a detailed analysis of Sections 372 and 378 CrPC, it noted that after the 2009 amendment, the proviso to Section 372 confers a substantive right of appeal on a “victim” against an order of acquittal, conviction for a lesser offence, or imposition of inadequate compensation.
Justice K. Babu observed, “…a person who files a complaint alleging offence under Section 138 of the NI Act has the right to prefer appeal under Section 378 or proviso to Section 372 of Cr.PC [Section 419 and proviso to Section 413 of the BNSS]. Since an appeal lies under the Code or the Sanhita, no proceeding by way of revision shall be entertained at the instance of the party who could have filed the appeal. Therefore, the revision petitions are not maintainable. Resultantly, the Revision Petitions stand rejected”.
Advocate Abhiram T. K. appeared for the revision petitioner EC Bineesh PP appeared for the respondent.
The judgment came in revision petitions filed against acquittal orders passed by the Sessions Court in two cheque bounce cases.
The trial court had convicted the accused under Section 138 of the Act, 1881. However, the appellate court acquitted them, and instead of filing an appeal, the complainant approached the High Court by way of criminal revision.
The bench thus examined whether a revision under Sections 397 and 401 CrPC was maintainable against an acquittal in a complaint case. Referring to Section 401(4) CrPC, the Court noted that where an appeal lies and no appeal is filed, revision cannot be entertained at the instance of a party who could have appealed.
The key issue in the matter, therefore, was whether a complainant in a Section 138 NI Act case has a right to appeal an acquittal.
The Court relying on the Supreme Court’s judgment in Celestium Financial (M/s) v. A. Gnanasekaran 2025 (4) KHC 189, held that in a cheque dishonour case, the complainant being the payee or holder of the dishonoured cheque, is indeed a “victim” within the meaning of Section 2(wa) CrPC. Therefore, such a complainant can file an appeal under the proviso to Section 372 as a matter of right.
The Court highlighted the distinction drawn by the Supreme Court: if a complainant proceeds under Section 378(4), special leave to appeal is required. However, if the complainant qualifies as a victim and proceeds under the proviso to Section 372, no special leave is necessary. The right of a victim to appeal stands on par with the right of a convicted accused to appeal under Section 374 CrPC.
Since a statutory appeal was available, the High Court held that the revision petitions were not maintainable in view of Section 401(4) CrPC. Accordingly, the revisions were rejected.
However, granting relief on limitation, the Court clarified that the time spent prosecuting the revision petitions before the High Court would be excluded while computing the limitation period for filing the appropriate appeal.
Cause Title: Liji v. State Of Kerala [Neutral Citation: 2026:KER:12589]
Appearances:
Petitioner: Abhiram T. K., Arun George.D, S. Krishna Kumar, Advocates.
Respondents: EC Bineesh PP, Advocate.