Appeal Against Acquittal Under Section 138, Negotiable Instruments Act

Whether to the High Court or Court of Session?

I never intended my book on Negotiable Instruments Act to be an exhaustive one. It was confined only to the issues that I came across in trials under Section 138. Now, having retuned to the bar, I find myself faced with newer questions and issues that I never had the occasion to deal with while working as a Magistrate.

A dear friend recently called me to discuss the possibility of filing an appeal against an order of acquittal passed in a complaint under Section 138, Negotiable Instruments Act. I promptly told him that since it is going to be an appeal against acquittal on a complaint, he would have to seek leave under Section 378(4), Criminal Procedure Code from the High Court and after obtaining the same, proceed with the appeal under Section 378.

Later that night, my answer started to perturb me. I felt like I had made an error in hastily answering the query. And it got me thinking.

There is no quarrel on the law that ordinarily where an order of acquittal has been passed in any case instituted upon a complaint, the complainant can prefer an appeal against the order of acquittal as provided under Section 378(4) of the Criminal Procedure Code, subject to grant of special leave to appeal by the High Court.

Section 378(4) of the Criminal Procedure Code reads as follows:

“If such 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.”

However, following the addition of the proviso to Section 372, Criminal Procedure Code by the Amendment Act 5 of 2009, the victim now has a statutory right to appeal against any order of acquittal passed by a trial Court. This appeal, however, shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.

Section 372, Criminal Procedure Code reads as follows:

“No appeal to lie unless otherwise provided.

No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code by any other law for the time being in force:

Provided 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 is, however, for a victim and the proviso does not mention a complainant. However, it is not necessary that a complainant and a victim have to be mutually exclusive. There is possibility for a complainant and a victim to overlap and co-exist in the same person.

Interestingly, the same amendment (Act 5 of 2009) which added the proviso to Section 372, Criminal Procedure Code also added Section 2(wa) to the Code which defines a victim. The amendment was brought in on the doctrine of victimology. In the Statement of Objects and Reasons of the Amendment Act which came into effect on 31.12.2009, Para 2 mentions “At present, the victims are the worst sufferers in a crime and they don't have much role in the court proceedings. They need to be given certain rights and compensation, so that there is no distortion of the criminal justice system."

As per Section 2 (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”

Now, in an offence under Section 138, Negotiable Instruments Act, it is the payee or holder of the cheque in due course, as the case may be, who has to be the complainant. The offence is committed when the drawer issues a cheque to the payee or holder in due course, as the case may be, in the discharge of his legally enforceable debt or liability and the cheque is dishonoured. It is the complainant who is issued the cheque by the accused person and the dishonour of the cheque which is issued towards discharging the accused person’s legally enforceable debt or liability towards the complainant causes wrongful loss to the complainant. Thus situated, the complainant in a case under Section 138, Negotiable Instruments Act also fits in the definition of a victim within the meaning prescribed under Section 2 (wa) of the Criminal Procedure Code insomuch as he sustains loss caused by the dishonour of the cheque issued by the accused person.

It is pertinent to point out here that the definition of victim as provided in Section 2(wa) of the Criminal Procedure Code makes no distinction between a person who is a victim in a case instituted on a police report and a person who is a victim in a case instituted on a complaint.

Now, returning to the issue of appeals, the first provision in Chapter XXIX of the Criminal Procedure Code which deals with appeals is Section 372. Section 372 is couched in a negative connotation- it bars any appeal without an enabling provision in the Code. However, this prohibition is insulated by the newly added proviso which gives an absolute and vested right to a victim to appeal meaning thereby that while appeal by any person other than a victim would be predicated on the presence of an enabling provision, no such enabling provision is required for a victim to appeal.

Now, as far as an appeal by a complainant is concerned, Section 378(4) is the specific enabling provision in this regard which allows the complainant to appeal against an order of acquittal subject to obtaining leave from the High Court. However, in view of the vested right created by the proviso to Section 372, Criminal Procedure Code in favour of a victim, the requirement of obtaining a leave to appeal from the High Court is now restricted only to complainants who are not victims.

In a case under Section 138, Negotiable Instruments Act, since the complainant and victim co-exist in the same person, no leave to appeal is required under Section 378(4); rather the complainant can file an appeal under the proviso to Section 372, Criminal Procedure Code.  

This is, however, my opinion. There are, of course, judgments which suggest the contrary.

The Supreme Court in Damodar S. Prabhu v. Sayed Babalal H, (2010) 5 SCC 663 has stated that “….in the case of acquittal by the JMFC, the complainant could appeal to the High Court under Section 378(4) of the CrPC.”. Damodar S. Prabhu (supra) is often cited to validate the necessity to obtain leave for filing an appeal under Section 378(4) of the Criminal Procedure Code against an order of acquittal in a case under Section 138, Negotiable Instruments Act. But what is most often lost sight of is the fact that Damodar S. Prabhu (supra) was decided on 3rd May, 2010 i.e., within 5 months of the Amendment Act of 2009 coming into force. The Supreme Court had no occasion to get into the novel intricacies of Chapter XXIX. The above cited observation must, therefore, be held to have been passed sub silentio. And it is no longer res integra that judgments passed sub silentio are not binding on the point of law that it did not have the occasion to discuss. Besides, the Supreme Court seemed to have made the remarks in passing. The issue before the Supreme Court therein was composition of the offence under Section 138, Negotiable Instruments Act and not an appeal against acquittal. Damodar S. Prabhu (supra), thus, cannot be considered a precedent on this issue.

Gouranga Debnath v. State of Tripura & Ors., 2011 (4) GLT 379 is a reported judgment wherein the Gauhati High Court had the occasion to interpret the amended proviso of section 372 Criminal Procedure Code in the context of section 378(4) as follows:

“In view of the above, we are of the further opinion that the petitioner is the victim within the meaning of clause (wa) of Section 2 of the Code. If we consider Sub-section (4) of Section 378 Cr.P.C, it would be evident that in a case instituted upon a complaint, the complainant has given a right to prefer an appeal against the order of acquittal and the Court has also been given the power to grant special leave, as for the informant in a police case, there is no right to prefer an appeal against an order of acquittal when the State as prosecutor is not preferring an appeal. Legislature considered that such right to appeal should be provided by way of insertion of proviso to Section 372 of the Code and with that legislative intent, the provisions of Section 372 was amended though straightway the Legislature did not use the word informant. Legislature considered the word 'victim'. Therefore, we again hold that every informant may not have the right to prefer an appeal against the order of acquittal, but undoubtedly every 'victim' has the right to prefer an appeal against the order of acquittal. Unless that right is provided to a victim like the petitioner herein, then there will be no remedy for the father and family members of the deceased, the real victim particularly in a case where married women are victim either by her husband or in-laws and in that case, the object for insertion of provision to Section 372 of the Code would be frustrated. The object behind it that the persons who are not in a position to prefer an appeal under the provisions of Section 378 of the Code, they should be provided a right for preferring an appeal under the amended proviso.”

A closer look at Gauranga Debnath (supra) reveals that it never negated the contention that a complainant cannot be the victim for the purpose of claiming benefit under the proviso to Section 372, Criminal Procedure Code. The judgment only acknowledged the void that existed for victims to appeal against acquittals. What was discussed therein was that while a complainant had a statutory right to appeal against an acquittal by obtaining leave under Section 378(4), no such provision existed for a victim prior to the amendment of 2009. The proviso was added to provide persons who were not in a position to prefer an appeal under Section 378 a statutory window to do so. The judgment, in fact, reinforces the contention that a victim is given statutory priority in preferring an appeal under the proviso to Section 372, Criminal Procedure Code. The option of appealing under Section 378(4), Criminal Procedure Code remains alive for a complainant but the right of a victim to appeal as guaranteed by the proviso to Section 372 will not get extinguished just because he also happens to be the complainant. Gauranga Debnath (supra) at least does not declare it as such.

Bhabesh Ch. Barman v. State of Assam and Anr., 2017 (2) GLT 389 is another judgment which is often cited to negate the statutory right of a complainant who also happens to be the victim to appeal under the proviso to Section 372, Criminal Procedure Code. The Gauhati High Court observed therein

“Coming to sub-sections (1) and (2) of Section 378 Cr.P.C., it is noticed that the procedure for preferring appeal in case of acquittal in a case instituted on a police report and investigated by the State investigating agency or the Delhi Special Police Establishment or by any other agency empowered to carry investigation either to the court of Session or the High Court specified therein. In other words, the Section provides for an appeal against acquittal by (i) the Government with leave of the High Court and (ii) and also by a private party in a case instituted upon complaint, when special leave is obtained from the High Court. However, in case of appeal against acquittal in any case instituted upon complaint, it is provided in sub-section (4) of Section 378 Cr.P.C. that the High Court, on an application made to it by the complainant in this behalf, if grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.”

The High Court further observed:

“In Subhas Chand Vs- State (Delhi Administration) reported in (2013) 2 C Cr. LR (SC) 151, the Apex Court held that an appeal against an order of acquittal in a case instituted upon complaint can be filed only in the High Court after obtaining special leave to appeal under sub-section (4) of Section 378 Cr.P.C. and the complainant cannot file an appeal against an order of acquittal passed by a Magistrate in a case instituted upon complaint before the Sessions Court. Therefore, the law is clear that an appeal against an order of acquittal in a case instituted upon complaint can only be preferred to the High Court, provided special leave is granted under sub-section (4) of Section 378 Cr.P.C., on an application made to it by the complainant.”

It is interesting to note that the Gauhati High Court relied upon Subhas Chand (supra) to hold that an appeal by a complainant under Section 138, Negotiable Instruments Act would lie under Section 378(4) and not the proviso to Section 372. The reliance on Subhas Chand (supra) is misplaced as Subhas Chand (supra) had no business dealing with either the amended Section 372 or the newly added Section 2(wa) to the Criminal Procedure Code. The entire judgment is conspicuously missing any discussion on these two provisions. Subhas Chand (supra) reiterated the general principle that an appeal against an order of acquittal in a case instituted upon complaint can be filed only in the High Court after obtaining special leave to appeal under Section 378(4), Criminal Procedure Code. There has never been any dispute on this aspect. The issue arises when the complainant and the victim are the same person. The nuances of the complainant and the victim converging in the same person was never the subject matter in Subhas Chand (supra).   Bhabesh Ch. Barman (supra) would, by necessary implication, find itself without an edifice to stand upon, as a result thereof.

On the other hand, the Supreme Court undertook the analysis of the right of appeal under Sections 372 proviso and 378(4) of the Criminal Procedure Code in the case of Mallikarjun Kodagli v. State of Karnataka and Ors reported in (2019) 2 SCC 752. The Supreme Court held therein:

“Under the circumstances, on the basis of the plain language of the law and also as interpreted by several High Courts and in addition the resolution of the General Assembly of the United Nations, it is quite clear to us that a victim as defined in Section 2(wa) of the Cr.P.C. would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction.”

The Supreme Court further observed

“The language of the proviso to Section 372 of the Cr.P.C. is quite clear, particularly when it is contrasted with the language of Section 378(4) of the Cr.P.C. The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word ‘complaint’ has been defined in Section 2(d) of the Cr.P.C. and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR, and therefore it is not at all necessary to consider the effect of a victim being the complainant as far as the proviso to Section 372 of the Cr.P.C. is concerned.”

The observations in Mallikarjun Kodagli (supra) do not succinctly consider the effect of a victim being the complainant. It was in the case of Joseph Stephen and Ors. v. Santhanasamy and Ors, MANU/SC/0086 that the Supreme Court further delineated the issue and held as follows:

“It cannot be disputed that now after the amendment in Section 372 Cr.P.C. after 2009 and insertion of proviso to Section 372 Cr.P.C., a victim has a statutory right of appeal against the order of acquittal. Therefore, no revision shall be entertained at the instance of the victim against the order of acquittal in a case where no appeal is preferred and the victim is to be relegated to file an appeal. Even the same would be in the interest of the victim himself/herself as while exercising the revisional jurisdiction, the scope would be very limited, however, while exercising the appellate jurisdiction, the appellate Court would have a wider jurisdiction than the revisional jurisdiction. Similarly, in a case where an order of acquittal is passed in any case instituted upon complaint, the complainant (other than victim) can prefer an appeal against the order of acquittal as provided under sub-section (4) of Section 378 Cr.P.C., subject to the grant of special leave to appeal by the High Court. (emphasis supplied)

As observed by this Court in the case of Mallikarjun Kodagali (supra), so far as the victim is concerned, the victim has not to pray for grant of special leave to appeal, as the victim has a statutory right of appeal under Section 372 proviso and the proviso to Section 372 does not stipulate any condition of obtaining special leave to appeal like subsection (4) of Section 378 Cr.P.C. in the case of a complainant and in a case where an order of acquittal is passed in any case instituted upon complaint. The right provided to the victim to prefer an appeal against the order of acquittal is an absolute right. Therefore, so far as issue no.2 is concerned, namely, in a case where the victim and/or the complainant, as the case may be, has not preferred and/or availed the remedy of appeal against the order of acquittal as provided under Section 372 Cr.P.C. or Section 378(4), as the case may be, the revision application against the order of acquittal at the instance of the victim or the complainant, as the case may be, shall not be entertained and the victim or the complainant, as the case may be, shall be relegated to prefer the appeal as provided under Section 372 or Section 378(4), as the case may be. Issue no.2 is therefore answered accordingly.”

The Gauhati High Court in Hemalata Das v. State of Assam and Anr. (Crl.L.P. 64/2019) in case of an acquittal passed in a Criminal Appeal arising out a complaint case held that “leave is not required to prefer an appeal in case of complainant/aggrieved person in the High Court.”

After going through the conspectus of the authorities cited above, I believe the issue, though nuanced, is not convoluted. It takes a purposive reading of the statute to understand the issue. One must understand that the jurisprudence pertaining to rights of victims has undergone a sea change since the enactment of the Code of Criminal Procedure, 1973. The proviso to Section 372 uses the term “victim” without any qualification attached to it. So, any person who fits in the definition, whether he is the informant or the complainant or even a witness, he would have the absolute and vested right to appeal against any order of acquittal. He does not have to be at the mercy of others to appeal against any judgment of acquittal if he is aggrieved by the said judgment. Following the insertion of the proviso to Section 372, CrPC, the question of seeking special leave to appeal in case of an acquittal on a complaint is now confined only to the complainant who is other than the victim. The victim, whether he is the complainant or not, needs no special leave to appeal.

The appeal would, meanwhile, lie before the Court to which an appeal ordinarily lies against the order of conviction. Thus, in relation to an order of acquittal passed in a complaint under Section 138, Negotiable Instruments Act, the complainant also being a victim within the meaning of Section 2(wa) of the Criminal Procedure Code has an absolute right of appeal and no leave is required to do so. But the appeal would lie before the Court of Session and not the High Court.

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