A complainant under Section 138 of the NI Act is recognized as a victim with independent rights to appeal against acquittal decisions.

O R D E R

% 03.09.2025

1. The present petition has been filed under Section 378 (4) Cr.P.C. by the petitioner/complainant seeking leave to appeal against the judgement dated 07.12.2023 passed by learned JMFC, NI Act, PHC in the case bearing CC No.13684/2019, CC No.8321/2020, CC No.17231/2019 and CC No.8322/2020, vide which the respondents were acquitted of the offense under Section 138 NI Act.

2. The attention of this Court is drawn to the recent decision of the Supreme Court in Celestium Financial vs A. Gnanasekaran etc, reported as 2025 SCC OnLine SC 1320 wherein, it has been held that the complainant under Section 138 NI Act, who suffers financial loss and injury on account of the dishonour of cheque, would qualify as a victim within the meaning of Section 2 (wa) Cr.P.C.

It was further held that such a complainant could maintain an appeal under proviso to Section 372 CrPC in his own right, without complying with the rigours of Section 378 (4) CrPC. The relevant portion is extracted hereunder:-

“7.7 In the context of offences under the Act, particularly under Section 138 of the said Act, the complainant is clearly the aggrieved party who has suffered economic loss and injury due to the default in payment by the accused owing to the dishonour of the cheque which is deemed to be an offence under that provision. In such circumstances, it would be just, reasonable and in consonance with the spirit of the CrPC to hold that the complainant under the Act also qualifies as a victim within the meaning of Section 2(wa) of the CrPC. Consequently, such a complainant ought to be extended the benefit of the proviso to Section 372 , thereby enabling him to maintain an appeal against an order of acquittal in his own right without having to seek special leave under Section 378 (4) of the CrPC xxx

7.9 In this context, we wish to state that the proviso to Section 372 does not make a distinction between an accused who is charged of an offence under the penal law or a person who is deemed to have committed an offence under Section 138 of the Act. Symmetrical to a victim of an offence, a victim of a deemed offenceunder Section 138 of the Act also has the right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing an inadequate compensation. When viewed from the perspective of an offence under any penal law or a deemed offence under Section 138 of the Act, the right to file an appeal is not circumscribed by any condition as such, so long as the appeal can be premised in accordance with proviso to Section 372 which is the right to file an appeal by a victim, provided the circumstances which enable such a victim to file an appeal are met. The complainant under Section 138 is the victim who must also have the right to prefer an appeal under the said provision. Merely because the proceeding under Section 138 of the Act commences with the filing of a complaint under Section 200 of the CrPC by a complainant, he does not cease to be a victim inasmuch as it is only a victim of a dishonour of cheque who can file a complaint. Thus, under Section 138 of the Act both the complainant as well as the victim are one and the same person.

3. Normally, a complainant who seeks to challenge a judgement of acquittal has to meet the rigours of Section 378 (4) Cr.P.C. The aggrieved complainant has to apply before the High Court for a special leave to appeal. If the High Court grants it, the complainant can present such appeal before the High Court.

4. However, if the complainant under the NI Act is also held to be a ‘victim’, then all the rights available to the victim by the Code would also be extended to such complainant,