Complainant In Cheque Bounce Case Can't Challenge Order Of Acquittal Before Sessions Court: Calcutta High Court

The Calcutta High Court has held that the appeal against the acquittal of the accused in a cheque bounce case can be filed only before the High Court under Section 378(4) of CrPC and not before the Sessions Court.

The bench of Justice Subhendu Samanta held thus after coming to the conclusion that a complainant in a case u/s 138 of the Negotiable Instrument Act is not a victim as defined u/s 2(wa) of CrPC and therefore, he/she can't file an appeal against acquittal according to the provision of Section 372 of Cr. P.C.

"Thus, a complainant in a case U/s 138 of the Act of 1881 could not challenge the order of acquittal before the Sessions Court under the proviso to Section 372 of the Code and his only remedy is to file an appeal to the High Court with special leave under Section 378(4) of the Code," the bench said.

Essentially, the Court had held that since a case under Section 138 of the NI Act is initiated by way of moving a complaint, therefore, the person who moves a complaint can't be held to be a victim as per section 2(wa) of Cr.P.C. and hence, no right accrues to him/her to file an appeal before the Sessions Court as per proviso to Section 372 CrPC.

For context, Section 378(4) CrPC states that against an order of acquittal in any case instituted upon complaint, the complainant can, subject to a grant of special leave to appeal, appeal to the high court.

At the same time, the proviso to Section 372 says 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.

The case in brief

An appeal was preferred before the Sessions Judge, challenging the order of the CJM Court acquitting the petitioner in a cheque bounce case. The Sessions Court set aside the CJM court's order and found the petitioner guilty of the offence punishable U/s 138 of the Negotiable Instrument Act.

Challenging the same, the petitioner moved the High Court arguing that if in a case instituted on a complaint, an order of acquittal is passed, whether offence be bailable or nonbailable, or cognizable or non-cognizable, the complainant can only file application U/s 378(4) Cr.P.C. for special leave to appeal against it in High Court and the complainant cannot file such an appeal in Sessions Court.

High Court's observations

At the outset, the Court referred to Andhra Pradesh High Court's judgment in the case of P. Vijaya Laxmi Vs. S.P. Sravana And Another, wherein it was categorically decided that a complainant of a case U/s 138 of N.I Act can not be categorised as 'victim' in terms of the definition U/s 2(wa) of the Code and stand excluded therefrom, by virtue of the fact that the accused in such a case is not subjected to a charge.

Thus, it was held by the Andhra Pradesh HC that suc a complainant is not entitled to prefer an appeal under the provisions U/s 372 of the Code; and that his only remedy is to prefer an appeal U/s 378(4) of the Code, with special leave against the order of acquittal.

Further, the High Court also referred to the Supreme Court's ruling in the case of Subash Chand Vs. State (Delhi Administration)] 2013 2 SCC 17, wherein it was held that the complainant of such case can challenge the order the acquittal by filing an application for special leave to appeal in the High court and not in the Sessions Court.

In light of these rulings, the Calcutta High Court held that a complainant in a case arising out of private complaint, who has already provide the right of appeal U/s 378(4) of the Code, can not be permitted to take recourse to Section 372 of the Code.

Consequently, allowing the appeal, the impugned judgment passed in Criminal Appeal by the Additional Sessions Judge, FTC 3rd Court Barrackpore was set aside by the High Court.

Case title - Ms. Todi Investors v. Ashis Kr. Dutta & Anr.

Case Citation: 2022 LiveLaw (Cal) 327

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