IMPORTANT POINT
The complainant in a complaint case for the offence punishable under Section 138 of the Negotiable Instruments Act, is not a victim as defined u/s 2(wa) of Cr.P.C., therefore, not entitled to file an appeal invoking the proviso to Section 372 Cr.P.C.

ORDER

Sanjay Kumar, J.—A learned Judge referred this case to a Division Bench for an authoritative pronouncement on the following questions of law: (1) Whether the complainant in a complaint case for the offence punishable under Section 138 of Negotiable Instruments Act is a victim as defined under Section 2(wa) of Cr.P.C. as amended by the Act No.5 of 2009 with effect from 31.12.2009 (2) If the complainant is a victim within the definition of Section 2(wa) of Cr.P.C., is he entitled to file an appeal invoking the proviso to Section 372 of Cr.P.C. before the Court to which an appeal lies against the conviction (3) If not, whether the complainant in a complaint case for the offence punishable under Section 138 of Negotiable Instruments Act or for any other offence either bailable or non- bailable is required to file an appeal against acquittal in a complaint case seeking special leave of the Court under Section 378 (4) of Cr.P.C.

Hence, the matter was placed before us.

2. The factual matrix from which the aforestated questions arise is as under: The petitioner herein is the accused in C.C.No.87 of 2015 on the file of the learned XXIII Special Magistrate, Hyderabad, arising out of the private complaint filed by the first respondent herein under Section 200 of the Code of Criminal Procedure, 1973 (for brevity, the Code), in relation to an offence under Section 138 of the Negotiable Instruments Act, 1881 (for brevity, the Act of 1881). By judgment dated 12.02.2016 passed therein, the learned XXIII Special Magistrate, Hyderabad, acquitted her. Aggrieved thereby, the first respondent/complainant filed an appeal before the learned Metropolitan Sessions Judge, Hyderabad. The petitioner, being the respondent therein, raised an objection as to the maintainability of the appeal. However, overruling her objection, the learned Metropolitan Sessions Judge, Hyderabad, passed orders on 17.10.2016 in Crl.M.P.No.1233 of 2016 filed in the appeal, condoning the delay of 24 days in its presentation on payment of costs. The appeal was thereupon numbered as Criminal Appeal No.926 of 2016. Aggrieved thereby, the petitioner approached this Court by way of the present petition under Section 482 of the Code. Her contention is that the learned Metropolitan Sessions Judge, Hyderabad, lacks jurisdiction to entertain an appeal arising out of the acquittal in a case instituted upon a complaint and that an appeal therefrom would only lie to the High Court under Section 378(4) of the Code. She accordingly seeks quashing of the appeal on the file of the learned Metropolitan Sessions Judge, Hyderabad. The learned single Judge who heard the case found that there was divergence of opinion on the framed questions of law and opined that an authoritative pronouncement would be desirable to give a quietus to the issue.

3. Sri Anand Kumar Kapoor, learned counsel representing M/s.Lawyers & Solicitors, counsel for the petitioner, advanced copious arguments on various aspects. The learned Public Prosecutors of the State of Telangana and the State of Andhra Pradesh assisted the Court as a pronouncement on the issues raised would have far-reaching consequences.

4. Sri M.Veera Prasada Chary, learned counsel, who appeared for the first respondent/complainant before the learned Judge at the time of the reference, did not choose to appear before us or advance arguments, though the matter was heard at length.

5. As the core controversy revolves around the construction and interpretation of essentially two provisions of the Code, it would be appropriate to extract them hereunder:—

Section 372. 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 or 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,