Complainant U/S 138 NI Act Does Not Come Within Ambit Of 'Victim' U/S 2(wa) CrPC: Kerala High Court

The Kerala High Court recently held that the complainant in a prosecution under Section 138 of the Negotiable Instruments Act would not fall within the ambit of the word 'victim', as defined under Section 2(wa) Cr.P.C. 

Section 2(wa) Cr.P.C. defines victim as "a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir". 

Justice V.G. Arun arrived at the said finding by relying upon the decision in Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka & Ors. (2019). The Apex Court had held therein that Section 378(4) is to be confined to an order of acquittal passed in a case instituted upon a complaint, and had further went on to clarify that the word 'complainant' as defined in Section 2(d) of the Cr.P.C. refers to any allegation made orally or in writing to a Magistrate and has nothing to do with the lodging or registration of an FIR. 

The present petition was filed against the order of the Judicial First Class Magistrate Court, Angamaly acquitting the accused 1st respondent in the complaint filed by the petitioner under Section 142 of the Negotiable Instruments Act (Cognizance of Offences). The Registry however, noted defect in the petition since it was filed beyond the period of limitation, without appending a petition for condoning the delay. 

Advocates Prabhu K.N. and Manumon A. contended on behalf of the petitioner that as per the decision in Sobhanakumari K. v. Santhosh @ Pallan Shaji (2018), the Full Bench of the Kerala High Court had laid down that after the enactment of the Cr.P.C. Amendment Act, 2008, the victim has a right of appeal against an order passed by the court acquitting the accused and there would be no period of limitation for filing the appeal. It had been observed in that case that the only requirement was that the victim ought to prefer the appeal after obtaining leave of the Court, and that at any rate, if there was no prescribed period of limitation, the appeal would have to be filed within a reasonable period of 90 days from the date of the order appealed against.

It was thus contended by the counsels for the petitioner that the complainant in a prosecution under Section 138 of the Negotiable Instruments Act would fall within the ambit of the term 'victim' as defined in Section 2(wa) Cr.P.C. and would hence be entitled to file the appeal as per Section 372 Cr.P.C. Section 372 Cr.P.C. stipulates that, "No appeal shall lie from any judgment or order of a Criminal Court except as provided for by the Code or any other law for the time being in force". 

The Court in this case rejected the afore contention of the petitioner in view of the decision in Omana Jose v State of Kerala (2014), wherein the Court had held that the expression 'victim' requires an interpretation in the context of Sections 372 and 378 Cr.P.C. (Appeal in case of Acquittal), 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). It was thus held that in a case under Section 138 of the Negotiable Instruments Act, the complainant cannot challenge the order of acquittal before the Sessions Court under the proviso to Section 372, and the plausible remedy would be to file an appeal to the High Court with special leave under Section 378 (4) Cr.P.C. 

It also rejected the argument raised by the counsel for the petitioner that the decision in Omana Jose (Supra) was no longer good law in light of the Apex Court decision in Mallikarjun Kodagali (supra). 

The Court elucidated that 'complaint' as defined in Section 2(d) Cr.P.C. refers to any allegation made orally or in writing to a Magistrate that some person, whether known or unknown, has committed an offence, will fall within the meaning of 'complaint', and excludes a police report. The Court further noted that Section 378(4) provides the complainant with the right to file appeal against acquittal in a case instituted upon a complaint, once special leave to appeal is granted by the High Court.

"In Mallikarjun Kodagali (supra), the Apex Court held Section 378(4) to be confined to an order of acquittal passed in a case instituted upon a complaint. The position is further clarified by the observation that the word 'complaint' as defined in Section 2(d) of the Cr.P.C. refers to any allegation made orally or in writing to a Magistrate and has nothing to do with the lodging or registration of an FIR. The above being the finding in Omana Jose (supra) also, the contention that the complainant in a prosecution under Section 138 falls within the definition of 'victim' under Section 2(wa) and is therefore entitled to file appeal under Section 372 of the Code can only to be rejected," the Court observed. 

It thus held that the defect pointed out by the Registry would be sustained. 

Case Title: Paulose v. Baiju & Anr. 

Citation: 2023 LiveLaw (Ker) 328 

Click Here To Read/Download The Order