A complainant as a victim under Section 138 of the Negotiable Instruments Act has the right to appeal against acquittal without prior leave from the court.

ORDER

Dated this the 8^th day of January, 2026

This criminal leave petition has been filed under Section 419 (4) of the Bharatiya Nagarik Suraksha Sanhita , 2023 [hereinafter referred as ‘ BNSS ’ for short], at the instance of the complainant in C.C. No.1115/2016 on the files of the Judicial First Class Magistrate Court, Pattambi, seeking leave of this Court to file appeal challenging the judgment of acquittal in the above case dated 17.11.2025. The accused before the trial court got arrayed as the 1^st respondent herein and the 2^nd respondent herein is the State of Kerala, represented by the learned Public Prosecutor and the.

2. Heard the learned counsel for the leave petitioner and the learned Public Prosecutor, in detail. Perused the verdict under challenge and the records of the trial court.

3. On perusal of the impugned judgment, it could be seen that the Judicial First Class Magistrate,Pattambi, tried the accused in the above said case, alleging commission ofoffencepunishable under Section 138 of the Negotiable Instruments Act. On appreciation of evidence, the accused was acquitted by the learned Magistrate. Now, the complainant has filed this criminal leave petition, seeking to grant leave to file appeal challenging the judgment of acquittal.

4. When the maintainability of this criminal leave petition before this Court was doubted and the question was heard, it is brought out that, the case emanated from a private complaint. In this connection, Section 413 of the BNSS assumes significance. On perusal of proviso to of , it has been provided as under:

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.

5. In a decision of the Apex Court reported in[(2025) 4 KHC 189] M/S. Celestium Financial V. A. Gnanasekaran Etc. , the Apex Court considered the word ‘victim’ contemplated in the proviso to Section 372 of the Code of Criminal Procedure [hereinafter referred as ‘Cr.P.C.’ for short] and held in paragraph Nos.7.3, 7.4, 7.6 to 7.11 are as under:

7.3 When is an accused charged of an offence under Section 138 of the Act would be relevant. It would be pertinent to refer to Section 200 of CrPC as a proceeding under Section 138 of the Act is commenced not on the basis of a police report but on the basis of a complaint filed under Section 200 of the CrPC. The expression ‘complaint’ is defined under Section 2(d) of the CrPC to mean an allegation made orally or in writing to a Magistrate with a view to his taking action under the CrPC, that some person, whether known or unknown, has committed an offence but does not include a police report.

7.4 When a complaint is filed under Section 200 of the CrPC, a Magistrate taking cognizance of an offence on such complaint examines upon oath the complainant and the witnesses present, if any, and the substance of such examination is reduced to writing which is required to be signed by the complainant and the witnesses and also the Magistrate. Section 202 of the CrPC states that any Magistrate, on receipt of a complaint of an offence of which he is authorized to take cognizance or which has been made over to him under Section 192, may, if he thinks fit, postpone the issue of process, and either inquire into the case himself