Complainants in private complaints, who satisfy the definition of victim as contained in Section 2(wa) of CrPC, are entitled to file an appeal as provided under the proviso to Section 372 Cr.P.C. as a matter of right.

Mr. P. Bhavadasan, J.

A common issue as to the applicability of the amended section 372 of the Code of Criminal Procedure arises for consideration in all these cases, and hence, they are being disposed of by a common judgment.

2. The issue that is being agitated is whether the complainant in a private complaint, on which cognizance was taken and which ended in acquittal of the accused, can resort to the new statutory remedy by way of appeal provided under Section 372 proviso or is he confined to the earlier remedy provided for under Section 378(4) Cr.P.C. of filing an appeal before the High Court after obtaining special leave.

3. An unimaginative hasty amendment, little aware of its consequences, though intended to be progressive and beneficial, has created confusion regarding the remedy available to certain group of persons. The matter has engaged the attention of various High Courts in the country, but the decisions have not been uniform. While some of the High Courts have taken the view that a complainant in a private complaint, which after trial ends in the acquittal of the accused, can now, if he falls within the definition of victim under Section 2(wa) of CrPC, resort to the remedy by way of appeal as provided under the proviso to Section 372 of Cr.P.C., some other High Courts have taken the view that in the light of the earlier provision, namely, Section 378(4) Cr.P.C. which continues to exist in the Statute book and is unamended, the remedy of the complainant is only to resort to the remedy under that provision.

4. Most of the cases dealt with in this judgment arise out of acquittal of accused in a private complaint filed for the offence under Section 138 of Negotiable Instruments Act. In all these cases, the complainants were issued with cheques by the accused persons allegedly due for repayment of debts due to the former. Those cheques, on presentation, bounced, mostly for insufficiency of funds and in some cases for other reasons which fall within the ambit of Section 138 of the NI Act. After the statutory formalities were complied with, since the debts remained undischarged, complaints have been laid before the appropriate Courts. In almost all cases herein, after trial, the accused were acquitted and in some cases, due to the absence of the complainant, the accused were acquitted under Section 252(1) Cr.P.C. In law, it makes little difference, as far as the right to appeal is concerned, as to whether acquittal is on merits or on default.

5. Senior Advocate Shri. Vijaya Bhanu, Senior Advocate Shri. S. Sreekumar, Adv. Sunny Mathew, Adv. S. Rajeev, Adv. V. Philip Mathew, Adv. Kaleeswaram Raj, Adv. S. U. Nazar, Adv. V. N. Ramesan Nambisan and Additional Director General of Prosecution Shri. Tom Jose Padinjarekkara were heard in the matter.

6. Two views were expressed by the learned counsel appearing for the parties. One group pointed out that the amendment, namely, Amendment Act 5 of 2009, has amended 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 CrPC is intended to benefit a specific group of persons falling within the ambit of the definition of victim. It was contended that these persons had no remedy earlier against acquittal and they had no role to play in the proceedings. It was felt that the victims were the most affected persons in a crime, and in the absence of any provision in the CrPC for them to participate in the proceedings or to agitate the matter when they feel aggrieved by the final decision, it was thought necessary that they should be provided with some remedies, and it is with that object and purpose that the amendments have been introduced. Heydon's Rule of Interpretation was invoked in support of this contention. It was also pointed out that as far as the complainants in a private complaint are concerned, there already existed a remedy by way of appeal by Special Leave under Section 378(4) Cr.P.C. and the ame