Summary
The Supreme Court held that the complainant in a cheque dishonour case under Section 138 of the Negotiable Instruments Act is a 'victim' within Section 2(wa) CrPC, having suffered economic loss by reason of the deemed offence, and may therefore appeal against an acquittal as of right under the proviso to Section 372 CrPC without seeking special leave under Section 378(4). Following Lokur J.'s view in Mallikarjun Kodagali, the Court held a victim's right of appeal is unconditional whether or not he is also the complainant, set aside the High Court's refusal of special leave and granted liberty to file appeals under the proviso within four months.
Issues
- Whether an appeal is maintainable under the proviso to Section 372 CrPC against an order of acquittal in a case instituted on a private complaint under Section 138 of the Negotiable Instruments Act, 1881, by treating the complainant as a 'victim' under Section 2(wa) CrPC.
- Whether a victim who is also the complainant must obtain special leave to appeal under Section 378(4) CrPC, or may appeal as of right under the proviso to Section 372.
- Which of the two views expressed in Mallikarjun Kodagali v. State of Karnataka on the need for leave in a victim's appeal should be followed.
Provisions considered
- Section 372, proviso, Code of Criminal Procedure, 1973Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 with effect from 31.12.2009, the proviso gives a victim the right to appeal against acquittal, conviction for a lesser offence or inadequate compensation, to the court to which an appeal ordinarily lies from a conviction. The Court read it as conferring an unconditional, superior right that is not circumscribed by the leave requirements applicable to the State or a complainant, and applied it to a Section 138 complainant. (¶¶ 6.1, 6.6, 7.6, 7.8, 7.9, 7.11, 7.12, 8, 9, 10)
- Section 2(wa), Code of Criminal Procedure, 1973'Victim' means a person who has suffered any loss or injury caused by the act or omission for which the accused has been charged, and includes his guardian or legal heir; the Court read 'loss or injury' broadly to include financial and economic loss and legal injury, drawing on Section 44 IPC and the 1985 UN Declaration, and held the payee or holder of a dishonoured cheque is such a victim. (¶¶ 6.2, 6.3, 6.4, 6.5, 6.6.1, 7.7)
- Section 378(4), (5) and (6), Code of Criminal Procedure, 1973In a case instituted on a complaint, the complainant may appeal against acquittal to the High Court only if it grants special leave on an application made within sixty days (six months for a public servant), and if leave is refused no appeal lies under sub-sections (1) or (2). The Court held these conditions bind a complainant who is not a victim, but a victim-complainant may instead proceed under the proviso to Section 372 without special leave. (¶¶ 5.5, 6.2, 7.10, 7.11, 9, 10)
- Sections 2(b), 2(d) and 200, Code of Criminal Procedure, 1973A Section 138 proceeding commences on a complaint under Section 200, not a police report; the Court held that a person deemed to have committed the offence is 'charged' as an accused and tried summarily under Section 143 of the Act read with Chapter XXI CrPC, so the complainant does not cease to be a victim merely because he set the law in motion. (¶¶ 6.7, 6.7.1, 6.7.2, 7.2, 7.3, 7.4, 7.5, 7.9)
- Sections 138, 139, 142, 143 and 147, Negotiable Instruments Act, 1881Dishonour of a cheque for insufficiency of funds is a deemed offence punishable with imprisonment up to two years or fine up to twice the cheque amount; cognizance is only on a written complaint by the payee or holder in due course, and trial is summary under Section 143. The Act has no appeal provision, so the CrPC applies, and the State's involvement being absent, the payee who complains is the victim of the deemed offence. (¶¶ 7, 7.1, 7.5, 7.6, 7.7, 7.12)
- Section 44, Indian Penal Code, 1860'Injury' includes any harm illegally caused to a person in body, mind, reputation or property; used to read 'loss or injury' in Section 2(wa) CrPC as covering economic loss. (¶¶ 6.3, 6.4)
Held
- Of the two views in Mallikarjun Kodagali, the Court followed Lokur J.: the proviso to Section 372 CrPC, read with the definition of victim in Section 2(wa), gives a victim the right to appeal to the court to which an appeal ordinarily lies from a conviction, and its language contrasts with Section 378(4), which is confined to complainants in complaint cases; restricting a cheque-bounce complainant to Section 378 would make the victim's right illusory and defeat the purpose of the 2009 amendment. (¶¶ 5.3, 5.9, 5.10, 6.1)
- 'Victim' in Section 2(wa) is exhaustive and then inclusive: a person who has suffered any loss or injury, physical, mental, financial or legal, by reason of an act or omission for which the accused has been charged, including the guardian or legal heir; economic or financial loss is an injury within the definition. (¶¶ 6.4, 6.5, 6.6.1)
- The complainant under Section 138 of the Negotiable Instruments Act is the aggrieved party who has suffered economic loss by the dishonour of the cheque, which is deemed an offence; he therefore qualifies as a victim under Section 2(wa) and is entitled to the benefit of the proviso to Section 372 so as to maintain an appeal against acquittal in his own right without special leave under Section 378(4). The proviso draws no distinction between an offence under penal law and a deemed offence under Section 138, and in such cases complainant and victim are one and the same person. (¶¶ 7.7, 7.8, 7.9)
- Where a complainant is not a victim, his appeal against acquittal in a complaint case is governed by Section 378(4) and the refusal of special leave bars any appeal under Section 378(6); but a victim, whether or not he is the complainant, who appeals under the proviso to Section 372 need not seek special leave. The reasons are that a victim's right of appeal is absolute and on par with the convict's right under Section 374, Parliament imposed no condition in the proviso and did not amend Section 378 to curtail it, and in Section 138 cases the State plays no role. (¶¶ 7.11, 7.12, 8)
- The victim of an offence has the right to appeal under the proviso to Section 372 CrPC irrespective of whether he is a complainant; even a victim who is the complainant may proceed under the proviso and need not resort to Section 378(4). The statutory rigours for appeals by the State or a complainant cannot be read into the proviso. (¶¶ 8, 9, 10)
Result
Appeals allowed; the High Court's common order dated 12.06.2024 refusing special leave to appeal set aside; liberty reserved to the appellant to file appeals under the proviso to Section 372 CrPC within four months, and if so filed the respondents and the appellate court are not to raise the issue of limitation.