(Under Section 482 of Cr.P.C) Anil Bisht v. State of Uttarakhand & another

Brief facts of the case are that respondent no.2 had instituted a criminal complaint under the Act, 1881 against the applicant before the learned Special Judicial Magistrate, 1st, Dehradun. After considering evidence, the learned Special Judicial Magistrate, 1st, Dehradun, vide order dated 18.11.2024, dismissed the complaint. Aggrieved by the said order, respondent no.2 preferred an appeal under Section 372 Cr.P.C. before the learned Sessions Judge, Dehradun, which was registered as Criminal Appeal No. 03 of 2015. The applicant raised objections regarding the maintainability of the appeal, contending that such an appeal could not be filed under proviso to Section 372 Cr.P.C. against an acquittal in a 1 complaint case. However, by order dated 18.02.2016, the learned Sessions Judge rejected the objections and held that the appeal under proviso to Section 372 Cr.P.C. was maintainable. Hence, this application under Section 482 Cr.P.C.

3. The learned counsel the applicant vehemently contends that the order passed by the learned Sessions Judge, Dehradun is patently illegal and unsustainable in law. It is submitted that an appeal under Section 372 Cr.P.C. is available only to a "victim" in cases instituted upon a police report, and the said provision does not extend to complaint cases filed under the Act, 1881. In such cases, the proper remedy available to the complainant lies under Section 378(4) Cr.P.C., wherein an appeal against an order of acquittal can only be preferred before the High Court, subject to the grant of special leave.

4. The learned counsel for the applicant further submits that the learned Sessions Judge committed a grave illegality by equating a complainant in proceedings under the Negotiable Instruments Act, 1881 with a “victim” as defined under Section 2(wa) Cr.P.C.

5. The learned counsel for the applicant also submits that the controversy is no longer res integra in view of authoritative pronouncements, particularly in the case of Subhash Chandra vs. State (Delhi Administration), (2013) 3 SCC 17, wherein the Hon’ble Supreme Court categorically held that in cases arising out of a complaint, there is no right to appeal under Section 372 Cr.P.C., and the only remedy available is to seek special leave to appeal under Section 378(4) Cr.P.C. He further placed reliance on the case of The Bhajanpura Cooperative Urban Thrift & Credit Society Ltd. vs. Sushil Kumar, 2014 SCC OnLine Del 2 4507, in which the Delhi High Court reiterated the same principle in the context of complaints under the Act,

1881. Therefore, he submits that the impugned order dated 18.02.2016, whereby the learned Sessions Judge entertained an appeal under Section 372 Cr.P.C. against an acquittal in a complaint case, is illegal, perverse, and liable to be quashed.

6. Per contra, the learned State Counsel submits that the appeal filed by respondent no.2 is clearly maintainable under Section 372 Cr.P.C., as complainant falls within the ambit of "victim" as defined under Section 2(wa) Cr.P.C. He further submits that once the aggrieved party establishes that he has suffered loss due to the dishonour of the cheque, his right to appeal cannot be curtailed merely on the ground of a technical objection. He also contends that the learned Sessions Judge has rightly rejected the objection of the applicant on the jurisdiction of the Court to hear the appeal by it and fixed the appeal for hearing on merits.

7. Having heard the learned counsel for both parties and upon careful perusal of the record, this Court finds no merit in the present application. The sole contention emphasized by the learned counsel for the applicant is that the appeal preferred by respondent no.2 against the acquittal is not maintainable under proviso to Section 372 Cr.P.C., but only under Section 378(4) Cr.P.C., and hence the proceedings are liable to be set aside. However, this argument does not hold ground in view of the settled position of law.

8. The Hon’ble Supreme Court in the case of M/s Celestium Financial vs. A. Gnanasekaran Etc., 2025 SCC Online SC 1320, at paragraph 9, has categorically held the following, which reads as under:- 3 “9. In the circumstances, we find that Section 138 of the Act being in the nature of a penal provision by a deeming fiction against an accused who is said to have committed an offence under the said provision, if acquitted, can be proceeded against by a victim of the said offence, namely, the person who is entitled to the proceeds of a cheque which has been dishonoured, in terms of the proviso to Section 372 of the CrPC, as a victim. As already noted, a victim of an offence could also be a complainant. In such a case, an appeal can be preferred either under the proviso to Section 372 or under Section 378 by such a victim. In the absence of the proviso to Section 372, a victim of an offence could not have filed an appeal as such, unless he was also a complainant, in which event he could maintain an appeal if special leave to appeal had been granted by the High Court and if no such special leave was granted then his appeal would not be maintainable at all. On the other hand, if the victim of an offence, who may or may not be the complainant, proceeds under the proviso to Section 372 of the CrPC, then in our view, such a victim need not seek special leave to appeal from the High Court. In other words, the victim of an offence would have the right to prefer an appeal, inter alia, against an order of acquittal in terms of the proviso to Section 372 without seeking any special leave to appeal from the High Court only on the grounds mentioned therein. A person who is a complainant under Section 200 of the CrPC who complains about the offence committed by a person who is charged as an accused under Section 138 of the Act, thus has the right to prefer an appeal as a victim under the proviso to Section 372 of the CrPC.” The law has thus evolved to recognize that a complainant in cheque dishonour cases is entitled to the status of a “victim” and, consequently, to exercise the statutory right of appeal.

9. The Court is also mindful that Sections 372 and 378(4) of the Cr.P.C. are not to be read in isolation but must be interpreted through the principle of harmonious construction. While Section 378(4) Cr.P.C. continues to govern complaint cases where complainant is not a “victim” within the meaning of Section 2(wa) Cr.P.C., in cases under the Negotiable Instruments Act, 1881, where the complainant clearly suffers loss due to the dishonour of a cheque, such person qualifies as a “victim” and may directly invoke proviso to Section 372 Cr.P.C. Thus, both provisions coexist without any conflict. 4

10. In light of the aforesaid pronouncement and the settled principles of construction, the objection raised by the applicant regarding the maintainability of the appeal cannot be sustained. The right of respondent no.2 to prefer an appeal is clearly maintainable and aligns with the principle enshrined in the proviso to Section 372 Cr.P.C. Accordingly, the appeal, has rightly been entertained. The applicant shall, nevertheless, have a full opportunity to defend himself and establish his case during the course of the trial.

11. Accordingly, the present C482 application is hereby dismissed.

12. Interim order dated 18.03.2016 stands vacated.

13. Pending application, if any, stands disposed of accordingly. AK (Pankaj Purohit, J.)

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