IMPORTANT POINT
‘Complainant’ in proceedings under S. 138 NI Act cannot be considered ‘victim’ in spirit of definition of S. 2 (wa) of Code & definition of ‘injury’ under S. 44 IPC cannot be imported into Section 138 NI Act.

S.P. Garg, J. — The challenge in these appeals is to judgments dated 02.03.2012 in CC No.4625/10 and dated 22.05.2012 in CC No.20806/10 by which the complaint cases under Section 138 of the Negotiable Instruments Act, 1881 (in short ‘N.I. Act’) filed by the appellant against the respondents resulted in their acquittal.

2. The appeals have been preferred under Section 372 of the Code of Criminal Procedure (in short ‘Cr.P.C.’). By an order dated 21.01.2013, learned counsel for the appellant was asked to satisfy if against an acquittal order in a complaint case, appeal would lie under Section 372 Cr.P.C. or special leave to appeal would have to be sought under Section 378 Cr.P.C.

3. I have heard the learned counsel for the parties on this limited legal question and have examined the record. Appellant’s counsel urged that after the Amendment Act 5 of 2009, amending Section 372 Cr.P.C. incorporating a right of appeal to the victims and also introducing definition of ‘victim’, as per Section 2(wa) of Cr.P.C., the appellant being the complainant-cum-victim was entitled to prefer appeals against orders of acquittal under Section 138 N.I. Act under Section 372 Cr.P.C. Learned counsel for the respondents challenging the maintainability of appeals under Section 372 Cr.P.C. urged that proper remedy to impugn acquittal orders was to file Special Leave Petition under Section 378 (4) Cr.P.C. Section 372 Cr.P.C. was not intended to cover the complainants, who already had statutory remedies to file appeals.

4. Admitted position is that the appellant is aggrieved by the orders of acquittal in complaint cases under Section 138 N.I. Act. Moot question is whether an acquittal order can be challenged under Section 372 Cr.P.C. or special leave is required to prefer an appeal under Section 378 (4) Cr.P.C. Various High Courts have taken different views and are at variance on this issue. The decisions are not uniform.

5. Single Bench of Kerela High Court in ‘Sree Gokulam Chit and Finance Co.(P) Ltd. and another vs. T.Krishnakumar and others ‘, (Crl.L.P.No.620/2013 and connected cases, decided on 30.10.2013) was of the view that ‘victim’ under Section 2 (wa) would include ‘complainant’ in a complaint case filed under Section 138 N.I. Act and therefore, as a matter of right, would be entitled to prefer appeal as provided under Section 372 Cr.P.C. Similar is the view taken by the High Court of Calcutta in ‘National Plywood Industries vs. State of West Bengal’, CRR No.2816/2012 and CRAN No.3690/2012, decided on 12.03.2013. Giving liberal interpretation to the definition of the ‘victim’ under Section 2 (wa) read with Section 2(y) of Cr.P.C. along with definition of ‘injury’ under Section 44 IPC and Section 22 IPC, it held that non-encashment of the cheque causes ‘injury’ to the person in whose favour cheque has been issued. The holder of the cheque is to be determined both complainant and victim. High Court of Jharkhand in ‘Mahesh Kumar Sinha vs. The State of Jharkhand & anr.’, Acquittal Appeal (DB) No.4 of 2013, decided on 15.04.2013, in a detailed judgment observed that when the victim and the complainant are the same person(s), then the complainants have a right to prefer statutory appeal under Section 372 Cr.P.C. The appellant therein had sought leave to prefer appeal under Section 378 (4) Cr.P.C. to impugn acquittal order in the proceedings instituted under Section 138 N.I. Act.

6. In ‘Ashok Kumar Srivastava and others vs. State of UP and another’, 2012 Law Suit (All) 415 decided by High Court of Allahabad on 30.03.2012, a complaint case was filed by the victim under Section 200 Cr.P.C. The accused persons were acquitted of the charges under Sections 498A/323/504/506 IPC and 3/4 Dowry Prohibition Act. The Allahabad High Court held that under Section 372 Cr.P.C. the complainant who was a ‘victim’ was entitled to prefer an appeal under Section 372 Cr.P.C.

7. High Court of Bombay has been consistent in its approach and in various decisions have taken th