Complainant U/S 138 NI Act Qualifies As A Victim; Can File Appeal Against Acquittal U/S. 372 CrPC Proviso: Supreme Court
The Supreme Court said that in the case of an offence alleged against an accused under Section 138 of the NI Act, the Complainant is indeed the victim owing to the alleged dishonour of a cheque.
Justice B.V. Nagarathna, Justice Satish Chandra Sharma, Supreme Court
The Supreme Court held that the Complainant under Section 138 of the Negotiable Instruments Act, 1881 (NI Act) qualifies as a victim and has a right to file an Appeal without seeking special leave.
The Court held thus in Criminal Appeals filed against the common Judgment of the Madras High Court.
The two-Judge Bench comprising Justice B.V. Nagarathna and Justice Satish Chandra Sharma observed, “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 dishonour of the cheque which is deemed to be an offence under that provision. In such circumstances, it would be just, reasonable and in consonance with the spirit of the CrPC to hold that the complainant under the Act also qualifies as a victim within the meaning of Section 2(wa) of the CrPC. Consequently, such a complainant ought to be extended the benefit of the proviso to Section 372, thereby enabling him to maintain an appeal against an order of acquittal in his own right without having to seek special leave under Section 378(4) of the CrPC.”
The Bench said that in the case of an offence alleged against an accused under Section 138 of the NI Act, the Complainant is indeed the victim owing to the alleged dishonour of a cheque and in the circumstances, the complainant can proceed as per the proviso to Section 372 of the Criminal Procedure Code, 1973 (CrPC) and he may exercise such an option and he need not then elect to proceed under Section 378 of the CrPC.
AOR Danish Zubair Khan represented the Appellant while AOR G. Sivabalamurugan represented the Respondents.
Issue for Consideration
The central issue arising for adjudication in the Appeals was, whether an Appeal would be maintainable under the proviso to Section 372 CrPC against an Order of acquittal passed in a case instituted upon a private complaint under Section 138 of the NI 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.
Reasoning
The Supreme Court in the above regard, noted, “Symmetrical to a victim of an offence, a victim of a deemed offence under Section 138 of the Act also has the right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing an inadequate compensation.”
The Court added that when viewed from the perspective of an offence under any penal law or a deemed offence under Section 138 of the Act, the right to file an Appeal is not circumscribed by any condition as such, so long as the Appeal can be premised in accordance with proviso to Section 372 which is the right to file an Appeal by a victim, provided the circumstances which enable such a victim to file an Appeal are met.
The Court elucidated that the Complainant under Section 138 NI Act is the victim who must also have the right to prefer an Appeal under the said provision and merely because the proceeding under Section 138 of the NI Act commences with the filing of a Complaint under Section 200 of the CrPC by a Complainant, he does not cease to be a victim inasmuch as it is only a victim of a dishonour of cheque who can file a complaint.
“Thus, under Section 138 of the Act both the complainant as well as the victim are one and the same person. … The right to prefer an appeal is no doubt a statutory right and the right to prefer an appeal by an accused against a conviction is not merely a statutory right but can also be construed to be a fundamental right under Articles 14 and 21 of the Constitution. If that is so, then the right of a victim of an offence to prefer an appeal cannot be equated with the right of the State or the complainant to prefer an appeal”, it further enunciated.
The Court was of the view that the statutory rigours for filing of an Appeal by the State or by a Complainant against an Order of acquittal cannot be read into the proviso to Section 372 of the CrPC so as to restrict the right of a victim to file an Appeal on the grounds mentioned therein, when none exists.
“In the circumstances, we find that Section 138 of the Act being in the nature of a penal provision by a deeming fiction against an accused who is said to have committed an offence under the said provision, if acquitted, can be proceeded against by a victim of the said offence, namely, the person who is entitled to the proceeds of a cheque which has been dishonoured, in terms of the proviso to Section 372 of the CrPC, as a victim”, it also said.
The Court remarked that a victim of an offence could also be a Complainant and in such a case, an Appeal can be preferred either under the proviso to Section 372 or under Section 378 by such a victim.
“… the victim of an offence would have the right to prefer an appeal, inter alia, against an order of acquittal in terms of the proviso to Section 372 without seeking any special leave to appeal from the High Court only on the grounds mentioned therein. A person who is a complainant under Section 200 of the CrPC who complains about the offence committed by a person who is charged as an accused under Section 138 of the Act, thus has the right to prefer an appeal as a victim under the proviso to Section 372 of the CrPC”, it concluded.
Accordingly, the Apex Court allowed the Appeals, set aside the impugned Judgment, and allowed the Appellant to file an Appeal having regard to the proviso to Section 372 CrPC within four months.
Cause Title- M/s. Celestium Financial v. A. Gnanasekaran Etc. (Neutral Citation: 2025 INSC 804)
