2022 (11) TMI 282 - HC - Indian Laws

Dishonor of Cheque - acquittal of present petitioner under section 255(1) of the Code of Criminal Procedure - whether the complainant of a complaint case filed U/s 138 of N.I Act can be treated as victim as defined U/s 372 of the Code of Criminal Procedure? - HELD THAT - It is pointed out that if it is to be construed that a complainant could also file an appeal to the Sessions Court under Section 372 proviso or to the High Court under Section 378(4) of the Code, it would mean that a complainant in a complaint case would have two remedies and if he chooses the remedy under Section 372 proviso, he could file an appeal as of right to the Sessions Court without leave and if he files an appeal under Section 378(4) of the Code, special leave is required. The law makers would not have wanted to provide two remedies to a complainant in a complaint case. The amendment of the Code in 2009 was not with the intention of providing multiple remedies to a complainant. Law makers did not confer concurrent jurisdiction on the Sessions Court and the High Court to entertain an appeal by the complainant against acquittal in a complaint case. A complainant in a case U/s 138 of the Act of 1881 could not challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the Code and his only remedy is to file an appeal to the High Court with special leave under Section 378(4) of the Code - Therefore, a complainant in a case arising out of private complaint, who has already provide the right of appeal U/s 378(4) of the Code, can not be permitted to take recourse to Section 372 of the Code. The instant appeal has got merit and it is allowed.

Summary

Issues Involved:
1. Whether a complainant in a case under Section 138 of the Negotiable Instrument Act is considered a victim as defined under Section 2(wa) of the Code of Criminal Procedure (Cr.P.C.)?
2. If the complainant is deemed a victim under the definition of Section 2(wa) of the Cr.P.C., is the complainant entitled to file an appeal invoking the provision of Section 372 of the Cr.P.C. before the court where an appeal lies against the conviction?

Issue 1:
The primary issue revolves around determining whether a complainant in a case under Section 138 of the Negotiable Instrument Act can be classified as a victim as per the definition under Section 2(wa) of the Code of Criminal Procedure. The judgment references a decision by the Andhra Pradesh High Court, which concluded that a complainant in such a case cannot be considered a victim under the Cr.P.C. definition, as the accused in such cases is not subjected to a charge. The complainant's only remedy, as per the judgment, is to file an appeal under Section 378(4) of the Cr.P.C. for special leave against the order of acquittal. The Supreme Court's ruling in the SUBHAS CHAND Case further clarifies that the complainant can challenge the acquittal by filing an application for special leave to appeal in the High Court, not in the Sessions Court.

Issue 2:
The second issue pertains to whether a complainant, if deemed a victim under Section 2(wa) of the Cr.P.C., is entitled to file an appeal under Section 372 of the Cr.P.C. against the acquittal. The judgment emphasizes that the legislature intended to provide a separate recourse for aggrieved victims by allowing an appeal at their behest. It clarifies that a complainant in a case arising from a private complaint, who already has the right of appeal under Section 378(4) of the Cr.P.C., cannot resort to Section 372 of the Cr.P.C. The judgment concludes that both points are answered in the negative, highlighting that a complainant in a case under Section 138 of the Negotiable Instrument Act is not a victim as defined under the Cr.P.C. and is not entitled to file an appeal against acquittal under Section 372, but can prefer an appeal before the High Court invoking the provision of Section 378(4) of the Cr.P.C.

In summary, the judgment delves into the legal intricacies surrounding the status of a complainant in a case under Section 138 of the Negotiable Instrument Act, clarifying the rights and remedies available to such parties under the Code of Criminal Procedure. The decision ultimately sets aside the impugned judgment passed by the Learned Additional Sessions Judge, highlighting the correct legal recourse for complainants in such cases and affirming the role of the High Court in addressing appeals against acquittals.