Complainant in Cheque Dishonour Case Can’t Appeal Against Acquittal Before Sessions Court: Calcutta HC [Read Judgment]

The Calcutta High Court, in M.K. Products vs. Blue Ocean Exports (P) Ltd. & Ors., has said that a complainant cannot challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the Code of Criminal Procedure, in a case under Section 138 of the Negotiable Instruments Act.

The judgement delivered by Justice Sankar Acharyya dealt with the question of whether an acquittal in a case of dishonour of cheque, instituted on a complaint, could be challenged at Sessions Court without the grant of special leave by the High Court.

Relying on the Kerala High Court decision in Omana Jose vs. State of Kerala and Others (which in turn discusses the principles in case Subhash Chand vs. State (Delhi Administration), the court reached the decision to uphold the impugned order. The relevant observations from the Kerala High Court’s judgement in that matter which the Calcutta High Court relied upon were:

1. After the introduction of the definition of ‘victim’ in Section 2 (wa), the victim in a case instituted on police report can prefer an appeal to the Sessions Court against any order passed by the court acquitting the accused or convicting the accused for a lesser offence or imposing inadequate compensation. No special leave to appeal is required in the case of an appeal filed under the proviso to Section 372.

1. If it is to be construed that a complainant/victim can file an appeal under proviso to Section 372 of the CrPC or under Section 378(4) to the High Court, this implies that the complainant has concurrent remedies - either appeal to the Sessions Court or the High Court. What prevents the complainant from filing a further appeal to the High Court under Section 378(4) if the Sessions Court also acquits the accused confirming the order of acquittal passed by the trial court?


2. Stating the expression “unless the context otherwise requires to” occurring in Section 2 has been used as a tool for interpretation of the proviso to Section 372 to resolve the question whether the context requires an interpretation to the term ‘victim’ taking out of its purview, a complainant in a complaint case. The expression ‘victim’ requires an interpretation in the context of the provisions in Sections 372 and 378 to exclude the complainant in a complaint case, who is also the victim, from the purview of the definition of victim under Section 2 (wa). The principles of harmonious construction and the principle that one section in a statute cannot be used to defeat the provision in another section enabled the court to come to such a conclusion.

In Para 35 of the above mentioned judgement, it was held that the complainant in a case under Section 138 of the Negotiable Instruments Act (dealing with the dishonour of cheque) cannot challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the CrPC and his remedy is only to file an appeal to the High Court with special leave under Section 378 (4) of the CrPC. Applying this rationale, the court held: The rationale of the said judgement in Omana Jose’s case is applicable here and is followed by this court in view of the facts and circumstances of this case under consideration.”

Thus, the High Court upheld the legality of the Sessions Court to dismiss the appeal filed by the petitioner and the impugned order was left without interference.

Read the Judgment here.