Section 372 of the CrPC. Leave to appeal by the Victim. There are some confusion with respect to forum before which an acquittal appeal would lie (case instituted on the private complaint)

1. Section 372 of the Criminal Procedure Code.
The question is, whether the Court of Session can entertain an acquittal
appeal preferred under Section 372 of the Criminal Procedure Code, 1973 (CrPC) by
the complainant or only the High Court can entertain it u/s 378(4) of the CrPC. To
decide this issue provisions contained u/s 372, 374 and 378 of the CrPC are
required to be taken into consideration.
To start with, I may first refer to the ratio laid down by the the Full Bench of
Hon'ble Gujarat High Court in the case of Bhavuben Dineshbhai Makwana v/s. State
of Gujarat, reported in 2012 SCC Online Guj 5764 = 2013 CrLJ 4225. The Full
Bench was required to decide three questions. The third question is relevant for our
consideration, which reads as under ...
If the victim prefers an appeal before this Court, challenging the
acquittal, invoking his right under proviso to Sec. 372 of the CrPC,
whether that appellant is required to first seek leave of the Court, as
is required in case of appeal being preferred by the State?
On the third question, the Full Bench of Hon'ble Gujarat High Court noted
that if the victim restricts the appeal to the grievance to inadequacy of the
compensation or punishment for a lesser offence, it does not become an appeal
against acquittal but the appeal is really directed against 'any other sentence or
order not being an order of acquittal' within the meaning of Art. 115(b) of the
Limitation Act, 1963 and thus, no question of taking special leave arises.
The Full Bench took the view that for the purposes of Section 378(4) of the
CrPC, a victim who is not a complainant will not come within the purview of that
section and would not be required to take recourse to the provision of special leave
as provided therein.
The third question was then answered in the following words:
If the victim also happens to be the complainant and the appeal is
against acquittal, he is required to take leave as provided in Section
378(4) of the CrPC but if he is not the complainant, he is not required
to apply for or obtain any leave. For the appeal against inadequacy of

2. compensation or punishment on a lesser offence, no leave is necessary
at the instance of a victim, whether he is the complainant or not.
While deciding the issue as whether leave to appeal is condition precedent for
preferring an appeal u/s 372 of the CrPC was poised before the Full Bench of the
Hon'ble Supreme Court in the case of Mallikarjun Kodagali (Dead) v/s. State of
Karnataka, AIR 2018 SC 5206.
Two Hon'ble Judges of the Supreme Court, in para No.37 has held as under:­
In our opinion, the Gujarat High Court made an artificial and
unnecessary distinction between a victim as a victim and a victim as a
complainant in respect of filing an appeal against an order of
acquittal. The proviso to Section 372 of the Cr.P.C. does not
introduce or incorporate any such distinction.
The third Hon'ble Judge did not agree with the view taken by the Two Judges.
From the above referred discussion one thing is clear that two Hon'ble Judges
of the Hon'ble Supreme Court in the case of Mallikarjun (supra) have taken a view
that no leave to appeal is required in case if an acquittal appeal is preferred u/s 372
of the CrPC. Whereas, one Hon'ble Judge of the Hon'ble Supreme Court in the case
of Mallikarjun (supra) has taken a view that leave to appeal is required in case if an
acquittal appeal is preferred u/s 372 of the CrPC.
Obviously, the majority view (Two Judges) that is, no leave to appeal is
required in case if an acquittal appeal is preferred u/s 372 of the CrPC is going to
prevail as the view taken by the Full Bench of the Hon'ble Supreme Court. Please
refer Shanti Fragrances v/s. Union of India, 2018 (11) SCC 305.
It is not in dispute that till date Hon'ble Supreme Court has no occasion to
decide an issue as to the right of the victim of a non­cognizble and bailable offence,
wherein case was instituted on a private complaint and after the trial by the Ld.
Magistrate, accused has been acquitted.
One school of thought, relying on the ratio laid down in the case of
Mallikarjun (supra) believes that in such case victim has the right to prefer an
acquittal appeal under the proviso of Section 372 of the CrPC and, therefore, no

3. leave to appeal would be required.
Second school of thought believes that, if the above referred proposition is
accepted, the provisions contained u/s 378(4) of the CrPC would become redundant
and the conjoint reading of Section 372 and Section 378(4) of the CrPC would lead
to only one conclusion that is, if an accused is acquitted by Ld. Magistrate in any
case instituted on a complaint, an acquittal appeal as provided u/s 378(4) of the
CrPC would lie to High Court which is obviously subject to the Special Leave to
Appeal.
Since, there is cleavage of opinion, the provisions contained under the proviso
of section 372 of the CrPC is required to be taken into consideration. Proviso of
Section 372 of the CrPC reads as under:­
Provided that 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.
Bare reading of the above referred provision makes it clear that the victim has
a right to prefer an appeal u/s 372 of the CrPC in the following cases.
­ against an order passed by the Court acquitting the accused; or
­ convicting for a lesser offence; or
­ imposing inadequate compensation.
­ to the Court to which an appeal ordinarily lies against the order of
conviction of such Court.
Simple reading of this provision makes situation clear that an appeal u/s 372
of the CrPC shall lie to the Court to which an appeal ordinarily lies against the order
of conviction of such Court and not against the order of acquittal.
Section 374 of the CrPC provides for appeals against conviction. Sub­section
374(3) of the CrPC is relevant for present discussion. Therefore, same is reproduced
hereinunder.
Section 374(3):­ Save as otherwise provided in sub­section (2), any

4. person­
(a) convicted on a trial held by a Metropolitan Magistrate or
Assistant Sessions Judge or Magistrate of the first class or of the
second class, or
(b) sentenced under section 325, or
(c) in respect of whom an order has been made or a sentence has
been passed under section 360 by any Magistrate, may appeal to the
Court of Session.
An analysis of the Section 378 of the CrPC would show that the said provision
provides for various appeals before the different forums by the public prosecutor at
the behest of the specified agencies and complainant:­
(1) An appeal against an order of acquittal by Magistrate in cases
involving cognizable and non­bailable offences would lie before
the Court of Sessions (No leave under subsection (3) section 378
CrPC is necessary). Same shall be preferred by the Public
Prosecutor upon direction of District Magistrate.
(2) An appeal against any original or appellate order of acquittal
passed by any Court other than High Court (except those referred
to in the above clause) would lie before the High Court after
obtaining leave under sub­section (3) of section 378 CrPC Same
shall be preferred by the Public Prosecutor upon direction of State
Government or upon the direction of the Central Government if
the case is investigated by CBI or any other Central agency under
any Central law.
(3) An appeal against any order of acquittal in a case instituted
upon a complaint would lie before the High Court after obtaining
special leave under subsection (4) of section 378 CrPC and same
shall be preferred by the Complainant.
The conjoint reading of Sections 372, 374 and 378 of the CrPC leads us to

5. following conclusion.
(a) If an acquittal appeal lies to the Court of Sessions, no
leave to appeal is required.
(b) Victim of the offence has no right to prefer an acquittal
appeal, apart from section 372 of the CrPC.
(c) The public prosecutor upon the directions of the State or
the Central Government, as the case may be prefer an
acquittal appeal before the High Court along with an
application to 'Leave to Appeal' u/s 378(3) of the CrPC.
(d) If an order of acquittal is passed in any case instituted
upon complaint, the complainant may present an acquittal
appeal to the High Court along with the 'Special Leave to
Appeal'.
From the above referred discussion, it becomes clear that the victim of the
offence who is not the complainant has no right to prefer an acquittal appeal u/s
378 of the CrPC. And, if the acquittal appeal lies before the Court of Sessions, no
leave to appeal is required.
But if we read proviso of Section 372 of the CrPC, it becomes clear that victim
of the offence has the right to prefer an acquittal appeal before the Court to which
an appeal ordinarily lies against the order of conviction of such Court.
From the above referred analysis of Sections 372 and 378 of the CrPC, it is
clear that the locus to file appeal under section 378 of the CrPC is vested in the
Public Prosecutor upon the direction of District Magistrate, State or Central
Government, as the case may be, and the complainant in complaint cases. Right of
the victim to file an appeal against acquittal is traceable to proviso to section 372 of
the CrPC and not to Section 378 of the CrPC. When the right to appeal is derived
from the proviso of section 372 of the CrPC which also provides the forum for such
appeal, therefore, according to me an appeal by victim would lie as provided under
the proviso of Section 372 of the CrPC.
The argument that, if the above referred proposition is accepted, Section

6. 378(4) of the CrPC would be redundant. According to me, it is not so. The best
example is the provisions contained u/s 28(1) under the Pre­natal Diagnostic
Techniques (Regulation and Prevention of Misuse) Act, 1994 (PNDT Act). In such
cases the Complaint may be any officer authorised in this behalf by the Government,
any person or social organisation. Such authority or the officer, person or social
organisation may not be the victim of the offence and, therefore, when accused is
acquitted under this Act, against such acquittal appeal would lie before the High
Court u/s 378(4) of the CrPC.
It is to be noted that under Section 24 of the PNDT Act there is presumption
which reads as under:­
Notwithstanding anything in the Indian Evidence Act, 1872, the
court shall presume unless the contrary is proved that the
pregnant woman has been compelled by her husband or the
relative to undergo pre­natal diagnostic technique and such
person shall be liable for abetment of offence under sub­section
(3) of section 23 and shall be punishable for the offence specified
under that section.
In view of this presumption, unless contrary is proved, it shall always be
presumed that the pregnant woman has been compelled by her husband or the
relative to undergo pre­natal diagnostic technique. Therefore, the pregnant woman
shall be treated as a victim, unless contrary is proved. Since, such pregnant woman
finds it difficult to lodge complaint against her husband or the relative for violation
of the PNDT Act, power to lodge complaint has been assigned to the Appropriate
Authority concerned, or any officer authorised in this behalf by the Government.
Let us take another example of the Prevention of Food Adulteration Act (PFA
Act). Section 20 of the PFA Act reads as under:­
No prosecution for an offence under this Act, not being an
offence under section 14 or section 14A of the PFA Act shall be
instituted except by, or with the written consent of, the Central
Government or the State Government or a person authorised in
this behalf, by general or special order, by the Central Government

7. or the State Government:
Provided that a prosecution for an offence under this Act
may be instituted by a purchaser or recognised consumer
association referred to in section12, if he or it produces in court a
copy of the report of the public analyst alongwith the complaint.
Here also just like PNDT Act, apart from the food inspector, a victim or
purchaser or recognized consumer association can prefer complaint under the PFA
Act. Therefore, under both the Acts, there could be two entities namely, complainant
and the victim. The authorised officer or the food inspector may file the complaint
who is admittedly not the victim. Along with this a victim under the PNDT Act or
PFA Act can also prefer a private complaint for alleged violation of an offence
punishable under the said Acts. If accused is acquitted by the Ld. Magistrate,
complainant who is obviously not victim will have to prefer an appeal u/s 378(4) of
the CrPC but when complaint was filed by the victim under the said Acts, he can
prefer an acquittal appeal before the Court of Session u/s 372 of the CrPC.
Let us take yet another example of a victim of an offence punishable u/s 304A
of the IPC. Suppose a private complaint had been filed by an eye witness to an
accident, who is not the victim. An offence punishable u/s 304A is cognizable and
bailable. Same is triable by the Ld. Magistrate. If after the trail, accused is acquitted
by the Ld. Magistrate, against such an order of acquittal, complainant may prefer an
acquittal appeal before the High Court u/s 378(4) of the CrPC and the victim has
the statutory right to prefer an appeal u/s 372 of the CrPC.
We may understand the intricacies involved u/Ss 372 and 378 of the CrPC by
one more example. Suppose in trail of non­cognizable and bailable offence (Section
323 of the IPC) which was initiated on the basis of an FIR and Ld. Magistrate acquits
the accused. Against such an order of acquittal, public prosecutor can prefer an
acquittal appeal before the High Court u/s 378(1)(b) of the CrPC and victim of such
an offence can also prefer an acquittal appeal before the Court of Session u/s 372 of
the CrPC.
From the above referred two examples it becomes clear that, in other than

8. cognizable and non­bailable offecne, if the Ld. Magistrate acquits the accused, two
acquittal appeals may lie before the two different forums i.e. one before the High
Court u/s 378(4) of the CrPC by the complainant in the complaint case or public
prosecutor u/s 378(1)(b); and second, is u/s 372 of the CrPC by the Victim. Thus,
more than one courts have the jurisdiction to entertain an acquittal appeal.
As discussed hereinabove, 'Leave to Appeal' is not required to be filed when an
acquittal appeal is to be filed before the Court of Session. Whereas, the complainant
who is not the victim has to prefer an acquittal appeal before the High Court u/s
378(4) of the CrPC. Hence, it is clear that acquittal appeals u/s 372 of the CrPC by
the victim and u/s 378(4) of the CrPC by the complainant who is not the victim
provide for concurrent remedies and does not come in conflict with each other.
Therefore, in my respectful view, an acquittal appeal at the behest of the victim
would lie before the Court of Session in view of the provisions contained u/s 372 of
the CrPC.
In this connection one more point which is required to be taken into
consideration is, in the CrPC there are several remedies which can be concurrently
availed before the different forums. They are, private complaint before the Ld.
Magistrate u/s 190 r/w Section 200 of the CrPC and an FIR before the police u/s
154 of the CrPC; revision application before the Court of Session u/s 397 of the
CrPC and before the High Court u/s 401 of the CrPC; and anticipatory bail
application before the Court of Session or High Court u/s 438 of the CrPC.
In view of above, it can not be said that CrPC does not provide for only one
remedy for a single cause of action. In fact, in three eventualities more than one
remedies have been provided. Therefore, in no circumstance it can be said that, if an
appeal at the behest of the victim before the Court of Session u/s 372 of the CrPC is
allowed, same shall render Section 378(4) of the CrPC redundant.
Another limb of argument is, under the proviso of Section 372 of the CrPC it
has been provided that 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. Therefore,

9. it is contended that as per Section 378(1)(a) of the CrPC, an appeal against an order
of acquittal by Magistrate in cases instituted on the police report, involving
cognizable and non­bailable offences would lie before the Court of Sessions. And, as
per Section 378(4) of the CrPC, an appeal against any order of acquittal in a case
instituted upon a complaint would lie before the High Court after obtaining special
leave under section 378(4) of the CrPC. Therefore, the word “ordinarily” used u/s
372 of the CrPC means that an appeal against an order of acquittal passed by the Ld.
Magistrate on the case instituted on police report or the private complaint, would lie
only before the the High Court. It is also contended that, if two appeals lie before
the two different forums, then an acquittal appeal should be preferred the Higher
Court and, therefore, an appeal against an order of acquittal passed by the Ld.
Magistrate for an offence punishable u/s 138 of the Negotiable Instrument Act may
be preferred only before the High Court u/s 378 of the CrPC.
This argument appears to be attractive at the first instance but on the care
reading of Sections 372, 374(3)(a) and 378 of the CrPC, it may not sound logical.
Reason being, if we read Section 372 of the CrPC, it becomes amply clear that an
acquittal appeal shall lie to the Court to which an appeal ordinarily lies against the
order of conviction of such Court. As noted above, as per Section 374(3)(a) of the
CrPC, if an accused is convicted on a trial held by a Metropolitan Magistrate or
Assistant Sessions Judge or Magistrate of the first class or of the second class, a
conviction appeal would lie before the Court of Session. Since, a conviction appeal
against an order of conviction passed by the Ld. Magistrate in a trail for an offence
punishable u/s 138 of the Negotiable Instrument Act, lies before the Court of
Session, as provided under Section 372 of the CrPC, an acquittal appeal against an
order of acquittal recorded by the Ld. Magistrate in a trail for an offence punishable
u/s 138 of the Negotiable Instrument would lie only before the Court of Session.
Even the argument that, if two appeals lie before the two different forums,
then an appeal should be preferred before the Higher Court may not sustain in view
of ratio laid down by the Larger Bench of the Hon'ble Supreme Court in the case of
Kuldip Singh v/s. State of Punjab, reported in AIR 1956 SC 391, wherein Hon'ble
Larger Bench of the Supreme Court has interpreted the word “ordinarily” and held

10. that when two appeals lie before two different forums i.e. one to the District Judge
and other to the High Court; the District Court being the lower in comparison to the
High Court, District Court must be regarded as the appellate authority. Therefore,
where appeals lie to more than one court, the Appellate Court of inferior jurisdiction
shall be the court to which such an appeal would lie. If we apply this ratio of Hon'ble
larger Bench in the present case, obviously an acquittal appeal by the victim u/s 372
of the CrPC before the Court of Session should be allowed.
One more thing which is required to be noted that here is that, if an acquittal
appeal is allowed to be preferred before the Court of Session (against an order of
acquittal passed by the Ld. Magistrate in the case instituted on the private
complainant), same would serve the purpose of enactment of Section 372 of the
CrPC and victim of the crime can prefer an acquittal appeal before the appellate
Court which is in the same district and same will help victim to save his money and
time and would also give an additional chance to prefer revision application before
the High Court, in case if, order of acquittal passed by the Ld. Magistrate is
confirmed by the Court of Session in an acquittal appeal preferred u/s 372 of the
CrPC.
It is no doubt true that by way of an amendment in Section 372 of the CrPC
new right in the form an appeal in favour of the victim has been provided.
Therefore, the argument that, against an order of acquittal, the complainant has to
approach the High Court u/s 378(4) of the CrPC though there is provision u/s 372
of the CrPC to prefer an acquittal appeal before the court where conviction appeal
normally lies, sounds illogical.
Now I will discuss which provision of CrPC would prevail? Whether Section
372 of the CrPC would prevail on Section 378(4) of the CrPC?
It is no doubt true that provision contained 417(4) of the old CrPC (Section
378(4) of the CrPC is the corresponding section in the new CrPC) is special
provision. Please refer Kaushalya Rani v/s. Gopal Singh, AIR 1964 SC 260. By way
of an amendment w.e.f. 31.12.2009, proviso to Section 372 has been added.
Wherein, forum to prefer an appeal has been prescribed. Said proviso has been
enacted to give certain rights to the victim of the offence. Therefore, said provision

11. is also special provision.
As discussed earlier, when accused has been acquitted by the Ld. Magistrate,
in a case instituted on the private complaint, two forums u/Ss 372 and 378(4) of the
CrPC have been prescribed; one is the Court of Session and another is the High
Court, respectively. Therefore, both being the special provisions, which provision
would prevail on which provision is the core question.
The question which arises here is, when there is apparent conflict or confusion
what can be done? Hon'ble Supreme Court in the case of District Mining Officer v/s.
Tata Iron and Steel, reported in 2001 (7) SCC 358 has held that in a case of
apparent conflict, harmonious meaning to advance the object and intention of
legislature has to be given.
Both these sections do not contain any non­obstent clause. Therefore, one
cant not say with all surety that one section would prevail on another. It is also
cardinal principle of law that when two provisions run in different directions, rule of
harmonious interpretation should be applied, and it should be applied in such a
fashion so that both may operate without coming into conflict with each other. [Ref:
Jay Engineering Works Ltd v/s. Industry Facilitation Council, reported in 2006 (8)
SCC 677].
It is cardinal principle of law that the parliament is presumed to know the law
existing at the time of enacting a statute or while adding something in the statute by
way of an amendment. And if, there is any conflict between them, the parliament
could have said so in unmistakable terms that particular provision would prevail on
the other. In the present case though an acquittal appeal under Section 378(4) of
the CrPC, which may lie to the High Court, has been specifically provided to the
complainant by adding proviso to Section 372 of the CrPC victim has been given the
statutory right to prefer an acquittal appeal, which may lie to the court where
conviction appeal ordinarily against such order. As discussed earlier, in a case
instituted on the private complaint, if Ld. Magistrate acquits the accused an acquittal
appeal would lie to the High Court u/s 378(4) of the CrPC and victim can prefer an
acquittal appeal before the Court of Session u/s 372 of the CrPC. Here, against an
order of acquittal, complainant and victim can prefer two different appeals that too

12. before the two different forums. Therefore, if the parliament wanted to give more
weightage to the right of the complainant to prefer a leave to appeal u/s 378(4) of
the CrPC in comparison to the right of the victim to prefer an appeal under Section
372 of the CrPC, the parliament could have said so in unmistakable terms while
enacting the proviso of Section 372 of the CrPC. But the parliament has not done so.
Which leads us to the conclusion that both the Sections i.e. Section 372 of the CrPC
and 378(4) CrPC, if applied as indicated above, then both of them may operate
without coming into conflict with each other.
In the case of Millikarjun (supra), two Hon'ble Judges held that no leave to
appeal is required when victim prefers an acquittal appeal u/s 372 of the CrPC
whereas, the third Hon'ble Judge did not agree with the above referred view and has
observed in para 93 as under:­
In case, I accept the proposition that the victim need not seek
leave to appeal in case the appeal is to be filed in the High Court
there shall be another anomalous situation. Supposing there are
two victims in a case and one of the victims files a complaint and
sets the wheels of justice moving and the case is tried as a
complaint case. In case the accused is acquitted and the victim
who is the complainant wants to file an appeal in the High
Court, he will have to seek special leave to appeal whereas the
victim who had not even approached the Court at the initial
stage will be entitled to file an appeal without seeking leave to
appeal. This could not have been the intention of the Legislature.
This proposition shall hold good when it comes to the case which is instituted
on the private complainant and exclusively triable by the Court of Session. Situation
could be entirely different when the alleged offence is non­cognizable and bailable
and case is instituted on the private complainant. In the facts of the first case,
acquittal appeals, both u/Ss 372 and 378(4) of the CrPC would lie before the High
Court but in the second case an acquittal appeal by complainant would lie before the
High Court u/s 378(4) of the CrPC but at the behest of the victim same would lie to
the Court of Session u/s 372, where no leave to appeal is required.

13. The Full bench of Gujarat High Court in the case of Bhavuben Dineshbhai
Makwana (supra) has observed that, if the victim also happens to be the
complainant and the appeal is against acquittal, he is required to take leave as
provided in Section 378(4) of the CrPC but if he is not the complainant, he is not
required to apply for or obtain any leave. This distinction between “a victim as a
victim” and “a victim as a complainant” have been held to artificial distinction by the
Hon'ble Supreme Court in the case of Mallikarjun (supra). If we read the
observations of the Hon'ble Full Bench of Gujarat High Court in the Bhavuben
Dineshbhai Makwana's case (supra) a victim who is complainant is not treated at
par with a victim who is not the complainant. As per the ratio laid down by the Full
Bench of the Hon'ble Supreme Court in the case of Mallikarjun (supra), a victim is a
victim and it does not make any difference, if such victim had filed the complaint or
not. Therefore, a victim shall always remain a victim and it does not matter whether
he had preferred the complaint or not. Therefore the crux is, a complainant who is
not the victim of the crime can not be equated with a victim who has preferred the
complaint, but a complainant who is the victim of the crime can be equated with a
victim who has not preferred the complaint. In view of the above discussion, it
appears that in a case instituted on the private complaint there can be three
categories viz.
1. Complainant who is also the victim;
2. Complainant who is not the victim; and
3. Victim who is not the Complainant.
Therefore, when the alleged offence is not exclusively triable by the Court of
Session and same is instituted on the private complainant and if, Ld. Magistrate
acquits the accused, in the first and the third categories mentioned hereinabove,
victim can prefer an appeal u/s 372 of the CrPC before the Court of Session but for
the second category, complainant who is not the victim has to prefer an acquittal
appeal u/s 378(4) of the CrPC.
If we apply the above referred reasoning, that when Ld. Magistrate passes an
order of acquittal in the case instituted on the private complaint, complaint who is
also the victim of the crime can prefer an appeal u/s 372 of the CrPC and a

14. complainant who is not the victim of the crime will have to prefer an appeal u/s
387(4) of the CrPC, then only it can be said that both the provisions operate without
coming into conflict with each other.
Second issue concerning this controversy is whether the complainant who had
preferred a complaint u/s 138 of the Negotiable Instrument Act can be treated as
victim or not.
Victim has been defined u/s 2(wa) of the CrPC which reads as under:­
Victim means 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.
Another limb of the argument is since the complainant who had preferred a
complaint u/s 138 of the Negotiable Instrument Act has not suffered any injury and,
therefore, he can not be treated as victim as defined u/s 2(wa) of the CrPC and an
acquittal appeal at his behest u/s 372 of the CrPC is not maintainable.
Section 2(y) of the CrPC provides that words and expressions used in the
CrPC and not defined, but defined in the Indian Penal Code, 1908 (IPC) have the
meanings respectively assigned to them in the IPC. The word 'Injury' has not been
defined under the CrPC but same has been defined under Section 44 of the IPC.
Therefore, in view of Section 2(y) of the CrPC, one has to take into consideration
the meaning of word 'Injury' as defined under the IPC. Meaning of word 'Injury' as
provided under the IPC, reads as under :­
Injury:­ The word 'injury' denotes any harm whatever illegally
caused to any person, in body, mind, reputation or property.
There is no doubt that the Cheque is a negotiable instrument. Section 6 of the
Negotiable Instrument Act defines a cheque is a bill of exchange drawn on a
specified banker, and not expressed to be payable otherwise than on demand. A
cheque is bill of exchange with two more qualifications, namely, (i) it is always
drawn on a specified banker, and (ii) it is always payable on demand. Consequently,
all cheque are bill of exchange, but all bills are not cheque. A cheque must satisfy
all the requirements of a bill of exchange; that is, it must be signed by the drawer,

15. and must contain an unconditional order on a specified banker to pay a certain sum
of money to payee or holder in due course.
The payee or holder in due course of the cheque is presumed to be the owner
of the property contained therein. A negotiable instrument does not merely give
possession of the instrument but right to property also. The property in a negotiable
instrument can be transferred without any formality. In the case of bearer
instrument, the property passes by mere delivery to the transferee. In the case of an
order instrument, endorsement and delivery are required for the transfer of
property. Therefore, no one can dispute the fact that once the cheque issued by the
accused is dishonoured, payee or holder in due course is said have suffered the loss
of property. Even presumptions contained under Sections 118 and 139 of the
Negotiable Instrument Act, provide that, unless contrary is proved, it shall be
presumed that the cheque in question was drawn for consideration. Therefore, the
moment cheque is dishonoured, it shall be presumed that accused has failed to
return his part of consideration i.e. amount mentioned in the cheque. And thus,
accused has illegally caused harm to property of the payee or holder in due course,
as the case may be.
Recently the Division Bench of Hon'ble Bombay High Court in the case of
Kushal Singanude v/s. Ramnarayan Agrawal, Cr. Application (APPA) 201 of 2018,
dated 27.08.2019 has held that the complainant of Section 138 of NI Act is not the
victim and therefore, appeal u/s 372 of CrPC is not maintainable.
It is required to be note that in the above referred judgment, ratio laid down
in the case of R. Vijayan v/s. Baby, 2012 (1) SCC 260 (para 18) has not been taken
into consideration. Wherein following observations are made ....
Having reached that stage, if some Magistrates go by the
traditional view that the criminal proceedings are for imposing
punishment on the accused, either imprisonment or fine or
both, and there is no need to compensate the complainant,
particularly if the complainant is not a ‘victim’ in the real sense,
but is a well­to­do financier or financing institution, difficulties
and complications arise.

16. In the above referred judgment is has been held that even a well­to­do
financier or financing institution can be a victim.
It is to be remembered that under the Negotiable Instrument Act, if the
accused is convicted, trial Court can impose fine which may extend to twice the
amount of the cheque. In view of Section 357(3) of the CrPC trail court can also
direct the convict to pay twice the amount of the cheque as fine and out of the said
amount, compensation may be paid to the complainant or if fine is not imposed,
trial court can direct the accused to pay twice the amount of the cheque as
compensation.
Therefore, now there is no doubt that trial Court upon the conviction of the
accused direct him to pay compensation to the complainant, which can be twice the
amount of the cheque. Suppose, an accused has been convicted by the Ld.
Magistrate and directed the accused to pay compensation of half the amount of the
cheque. Under this circumstance, complainant can obviously prefer an appeal u/s
372 of the CrPC. But the argument that, if the accused is acquitted, complainant has
to prefer an acquittal appeal before the High Court u/s 378(4) of the CrPC does not
once again sound logical. The obvious reason is, as per section 372 of the CrPC
victim can prefer an appeal u/s 372 of the CrPC in the three eventualities i.e. against
an order passed by the Court acquitting the accused; or convicting for a lesser
offence; or imposing inadequate compensation. If complainant can prefer an appeal
u/s 372 of the CrPC against an order of the trail court imposing inadequate
compensation why can't complainant be allowed to prefer an acquittal appeal
against an order of the same trail court acquitting the accused?
As discussed above, the argument that, if an appeal against an order of
acquittal passed by the Ld. Magistrate is allowed u/s 372 of the CrPC then the
provisions contained under Section 378(4) of the CrPC would be redundant would
come into picture. But for the reasons stated hereinabove, said argument would also
not sustain.
One more reason, why according to me an acquittal appeal u/s 372 of the
CrPC against an order of acquittal passed by the Ld. Magistrate in favour of an
accused of Negotiable Instrument Act, would lie before the Court of Session is, a

17. Civil Court or the Criminal Court can pass an award or an order of compensation in
favour of the victim or his legal heirs or representative, as the case may, if such
Court finds that because of the illegal or negligent act of the accused or the
tortfeasor, someone has suffered any loss or injury. Thus, order of imposition or
awarding of the compensation can be passed by the court only in the circumstance
when court comes to the conclusion that because of the illegal or negligent act of the
accused or the tortfeasor, victim has suffered any loss or injury.
Prior to the Amendment of 2018 in the Negotiable Instrument Act there was
no provision under the Negotiable Instrument Act to pass an order of imposition of
compensation. But by way of an amendment in the Negotiable instrument Act,
Section 143­A of the Negotiable Instrument Act has been added. Which speaks about
payment of interim compensation which shall not exceed 20% of the amount of the
cheque.
As noted hereinabove, in the Negotiable Instrument Act, no specific provision
with respect to imposition of compensation on conviction of the accused has been
made but trail court can import powers from the provisions contained u/s 357(3)
the CrPC and upon conviction of the accused the trail court can pass an order of
imposition of compensation. Before the proviso to Section 372 of the CrPC was
added, no one had any right to prefer an appeal against an order of imposition of
inadequate compensation but by adding the proviso to Section 372 of the CrPC, that
right has being given to the victim. Here the importance of Section 357(3) of the
CrPC comes into play and, therefore, same is reproduced hereinunder:­
When a Court imposes a sentence, of which fine does not form a
part, the Court may, when passing judgment, order the accused
person to pay, by way of compensation, such amount as may be
specified in the order to the person who has suffered any loss or
injury by reason of the act for which the accused person has been
so sentenced.
Section 357(3) of the CrPC provides that upon conviction of the accused, trial
court can pass an order of payment of compensation in favour of the person who has
suffered any loss or injury by reason of the act for which the accused person has

18. been so sentenced. Admittedly, Ld. Magistrate who tries a case for an offence
punishable u/s 138 of the Negotiable Instrument Act, after passing an order of
conviction, direct the accused to undergo sentence which may extend upto 2 years
and can also direct the accused so convicted to pay compensation which may extend
to twice the amount of the cheque. Therefore, Ld. Magistrate who has convicted the
accused for an offence punishable u/s 138 of the Negotiable Instrument Act, can
pass an order of compensation in favour of the complainant under the legal notion
that the person has suffered loss or injury by reason of the act for which the
accused person has been so sentenced. Definition of 'Victim' as provided u/s
2(wa) of the CrPC provides that the victim means, a person who has suffered any
loss or injury caused by reason of the act or omission for which the accused has
been charged.
The words used u/s 357(3) of the CrPC that the person has suffered loss or
injury by reason of the act for which the accused person has been so sentenced
and the words used u/s 2(wa) of the CrPC that a person who has suffered any loss
or injury caused by reason of the act or omission for which the accused has
been charged are almost identical. Therefore, the conjoint reading of Section
357(3) of the CrPC and Section 2(wa) of the CrPC leads us to the conclusion that a
person who has file complaint for an offence punishable u/s 138 of the Negotiable
Instrument Act can be said to be the Victim, as defined u/s 2(wa) of the CrPC.
Someone may object to the above referred proposition on the count that Ld.
Magistrate does not frame Charge in summons case and an offence punishable u/s
138 of the Negotiable Instrument Act shall be tried summarily. But in most of the
cases Ld. Magistrate, after recording the reasons as provided u/s 143(1) of the
Negotiable Instrument Act try such case as summons case. When Ld. Magistrate
decides to try such case as summons case, he has to follow Chapter XX of the CrPC.
Section 251 of the CrPC relevant for our consideration, therefore, same is
reproduced hereinubder:­
Section 251 of the CrPC­ Substance of accusation to be stated:­
When in a summons­ case the accused appears or is brought
before the Magistrate, the particulars of the offence of which he

19. is accused shall be stated to him, and he shall be asked whether
he pleads guilty or has any defence to make, but it shall not be
necessary to frame a formal charge.
As provided u/s 251 of the CrPC, when the accused appears or is brought
before the Magistrate, the particulars of the offence of which he is accused shall be
stated to him, and he shall be asked whether he pleads guilty or has any defence to
make, but it shall not be necessary to frame a formal charge. Since, formal charge is
not required to be framed in the summons case, plea of the accused is being recored
by the Ld. Magistrate. Section 240 of the CrPC provides that the accusation shall be
read over and explained to the accused and then he should be asked whether he
pleads guilty of the offence charged or claims to be tried and Section 244 of the
CrPC provides that that in any warrant case instituted otherwise than on a police
report, the accused appears or is brought before a Magistrate, the Magistrate shall
proceed to hear the prosecution and take all such evidence as may be produced in
support of the prosecution. Just like Sections 240 & 244 of the CrPC, Section 251 of
the CrPC provides that the particulars of the offence of which he is accused shall be
stated to him, and he shall be asked whether he pleads guilty or has any defence to
make. Section 241 & 246(3)and Section 252 of the CrPC are pari materia and they
speak about conviction on plea of guilty of the accused. Therefore, it can not be said
that since charge is not being framed, in view of Section 2(wa) of the CrPC,
complainant who had preferred complaint for an offence punishable u/s 138 of the
Negotiable Instrument Act can not be treated as victim. In fact recording of the plea
is just like framing of the charge and in both these circumstances, if the accused
plead guilty, he can be convicted.
One more point which is required to be taken into consideration here is, if
accused is convicted for an offence punishable u/s 138 of the Negotiable Instrument
Act, Ld. Magistrate may direct such an accused to undergo sentence of
imprisonment which may extent to two years unlike in a warrant case where Ld.
Chief Judicial Magistrate may direct the convicted accused to undergo sentence of
imprisonment which may extend upto seven years. Since, an offence punishable u/s
138 of the Negotiable Instrument Act is not considered to be too serious offence in

20. compression to the warrant case, formal charge is not required to be framed.
Therefore, it can not be held that only because formal charge is not framed in the
summons triable cases, same can not be equated with Section 240 of the CrPC.
From the ratio laid down in the case of R. Vijayan (supra) and interpretation
of Section 357(3) and Section 2(wa) of the CrPC, it becomes clear that a person
who has file a complaint for an offence punishable u/s 138 of the Negotiable
Instrument Act is the person who has suffered loss or injury and he is the victim as
defined u/s 2(wa) of the CrPC and, therefore, he is entitled to prefer an acquittal
appeal u/s 372 of the CrPC.
In the aforesaid premises, if an accused for an offence punishable u/s 138 of
the Negotiable Instrument Act is acquitted, complainant has the right to prefer an
acquittal appeal u/s 372 of the CrPC before the Court of Session.
Note:­ Hon'ble Supreme Court in the case of Hon'ble Supreme Court in the case of
State (Delhi Administration) v/s. Dharampal, reported in 2001 (10) SCC 372 has
pointed out the draftsman's error in Section 378(1) and 375(5) of the Cr.P.C. Which
will go to the root of this issue.
Note­ if at all to be added, it be should be after Section 143­A of the Ni Act para.
Suppose, if an accused does not plead guilty at the time of recording of the plea, and
trial court passes an order pay 10% of the cheque amount as interim compensation
as provided u/s 143­A of the Negotiable Instrument Act. Which is going to be the
forum where the complainant can prefer an appeal against such an order of
imposition inadequate compensation. Here the complainant wants to challenge an
order of imposition inadequate compensation and not an order of conviction or
acquittal. Therefore, obviously such an an appeal would lie before the Court of
Session u/s 372 of the CrPC.