Section 138 NI Act: Complainant cannot file appeal against acquittal before sessions court [Read the Judgment]

Bombay High Court has held that a complainant in a cheque bounce case cannot avail the benefit of proviso to Section-372 CrPC and he has to file appeal against acquittal before the High Court.

A bench of Justice Deshmukh and Justice Ganediwala has passed the order in the case titled as Kushal Kawaduji Singanjude vs Ramnarayan Durgaprasad Agrawal on 23.08.2019.

Special bench was constituted to decide the issue “Whether the appeal against acquittal in prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, would lie under Section 378(4) of the Code of Criminal Procedure or would be as per proviso below Section 372 of the Code of Criminal Procedure ?”

High Court observed "Section 2(wa) and proviso to Section 372 have been added in the Code with effect from 31.12.2009. The purpose and object of the amendment was to provide relief to the 'victims' of offence who hitherto had practically no role to play in the criminal proceedings and who were to remain as mute spectators and was not at all to cover a situation where the complainant in a private complaint under Section 138 of the Act of 1881, who already had a remedy by way of appeal for redressal of his/ her grievance. As such, the “complainant” as referred in Section 138 of the Act of 1881 proceedings cannot be treated at par with 'victim' of a crime for whose benefit amendments have been brought into existence. It is a kind of privilege conferred upon a victim to vent his/ her grievance by preferring an appeal on limited grounds enumerated in the proviso to Section 372 of the Code. It is a separate and statutory right and is not dependent either upon or is subservient of the right of appeal of the State. The purpose of introduction of Section 372 in the Code is only and only to give voice to the erstwhile speechless victim in cases initiated on police reports".

It further observed "On the contrary, in a case initiated by filing a private complaint before the Competent Court, in case of acquittal, the complainant was/ is having remedy to file appeal under Section 378(4) of the Code. At the same time the State is also not debarred from filing appeal against acquittal in a case initiated on private complaint which is in the realm of public law wherein the crime is considered to have been committed against the society. As stated earlier, the purpose of introduction of Section 138 of the Act of 1881 and allied provisions in the Act of 1881 is only to give efficacy and to inculcate faith of the public in such transactions. Thus, the complainant as contemplated under Section 138 of the Act of 1881, cannot be treated as a victim under 'proviso' to Section 372 of the Code".

High Court also observed "Looking to the object and purpose for introducing Section 138 and allied provisions in the Act of 1881, the offence of dishonour of cheque cannot be viewed with the same lenses at par with the penal provisions involving mens rea. Generally, crime is treated as a wrong against the society. It is a public wrong. State has to play a major role even though the prime sufferer is the victim of the crime. However, the same is not a position with the offence under Section 138 of the Act of 1881. Here, the State has no role to play at all. The purpose is to recover the amount as mentioned in the cheque and not to send the accused in jail for the commission of offence. The law permits compounding of offence at any stage, even after conviction and the result of compounding would be an acquittal/ discharge of the accused".

It then observed "The right of appeal, being a statutory right, cannot be assumed unless expressly provided by the statute. The right of appeal is created by way of substantive provision in the statute. The Code of Criminal Procedure, though considered as a procedural law, it is a substantive law as far as right of appeal is concerned. For the purpose of trial of the offence under section 138 of the Act of 1881, as per Section 4(2) of the Code, the provisions in the Code are applicable. For the purpose of appeal against the order of conviction or the order of acquittal in a case instituted on private complaint, the remedy of appeal is already provided in the Code. Only on the basis of definition of 'victim' which came to be inserted by way of amendment in the year 2009 with avowed object in mind alongside the creation of right of appeal to the victims of crime, the same cannot be usurped for the purpose of offence under section 138 of the Act of 1881, unless expressly provided".

High Court ultimately held "The appeal against acquittal in prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, would lie under Section 378(4) of the Code of Criminal Procedure".

Read the Judgment here:

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