A complainant under Section 138 is deemed a victim and thus entitled to appeal against acquittal under Section 372 without seeking special leave, reflecting judicial interpretation and setting clear procedural guidelines.

ORDER :

G.K.ILANTHIRAIYAN, J.

The criminal original petition in Crl.OP.No.27089 of 2024 in Crl.A.SR.No.49576 of 2024 has been filed seeking relief to file an appeal against the judgment passed in CC.No.40 of 2009 on the file of the Judicial Magistrate-III, Erode dated 27.06.2024, thereby dismissed the complaint and acquitted the respondents for the offence punishable under Section 138 of NI Act. The criminal original petition in Crl.OP.No.27094 of 2024 in Crl.A.SR.No.59577 of 2024 has been filed seeking grant leave to file an appeal against the order of acquittal under Section 419 (4) of BNSS , 2023.

2. It is relevant to extract the provisions under Section 419 (4) of BNSS , 2023 (Section 378(4) of Cr.P.C.), hereunder:

“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.”

Thus, in an appeal against the order of acquittal passed in a case instituted upon a complaint, the application has to be made to grant leave by the complainant to file an appeal against the order of acquittal before this Court.

3. It is also relevant to rely upon the provisions under Section 413 of BNSS , 2023( Section 372 of Cr.P.C.), which are extracted hereunder:

413. 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 Sanhita 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, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.

Thus, it is clear 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 any compensation and such appeal shall lie to the court to which the appeal ordinarily lies. The present petition has been filed for grant leave to file an appeal against the order of acquittal under Section 419 (4) of BNSS Act, 2023 (Section 378(4) of Cr.P.C.).

4. In this regard, the Hon'ble Supreme Court of India held in the case of M/s.Celestium Financial Vs. A.Gnanasekaran ETC. in SLP.(Crl)Nos.137-139 of 2025 reported in 2025 INSC 804, that against the order passed by this Court thereby dismissing the petition seeking leave to file an appeal against the order of acquittal in Crl.OP.Nos.929, 931 & 1034 of 2024 in Crl.A.SR.Nos.1282, 1300 & 1321 of 2024. The issue involved in the petition before the Hon'ble Supreme Court of India was that whether an appeal would be maintainable under the proviso to Section 372 of Cr.P.C. ( Section 413 of BNSS , 2023) against the order of acquittal in a complaint filed under Section 138 of NI Act by treating the complainant in such a proceeding as a victim within the meaning ascribed to the term under Section 2 (wa) of Cr.P.C. ( Section 2 (1)(y) of , 2023). In this issue, the Hon'ble Supreme Court of India held as follows:

7.1 In the context of the present case, a person who fails to satisfy his legal liability to honour a cheque owing to insufficiency of funds, or other reasons concerning his bank account is deemed to have committed an offence under Section 138 of the Act and therefore is charged as an accused for such an offence and can be punished by imprisonment for a term which may extend to two years or a fine which may extend to twice the amount of the cheque or both.

7.2 The expression ‘a