The Madhya Pradesh High Court has affirmed that a victim of a cheque dishonour offence under Section 138 of the Negotiable Instruments Act has an independent statutory right to appeal an acquittal under the proviso to Section 372 of the Code of Criminal Procedure, without requiring special leave. This ruling resolves long-standing uncertainty regarding the appellate rights of victims in private complaints under the NI Act.
Background & Facts
The Dispute
The appellant, Ritu Namdev, filed a private complaint under Section 138 of the Negotiable Instruments Act, 1881, against Smt. Roshni Usrethe, alleging dishonour of a cheque issued as payment for goods supplied. The complaint was filed before the Judicial Magistrate First Class, Jabalpur, in SCNIA No. 1092/2021. After trial, the Magistrate acquitted the accused on 18.03.2025, holding that the prosecution failed to prove the essential ingredients of the offence.
Key Facts
- The cheque of Rs. 2,75,000 was issued on 12.08.2020 and presented for payment on 15.09.2020
- The cheque was returned unpaid on 17.09.2020 with the reason "Insufficient Funds"
- A legal notice under Section 138 was issued on 22.09.2020, received by the accused on 25.09.2020
- The accused failed to make payment within 15 days of the notice, as required under Section 138
- The complaint was filed on 10.11.2020
- The trial court acquitted the accused on 18.03.2025, finding insufficient evidence of mens rea and failure to establish the debt or liability
Procedural History
- 12.08.2020: Cheque issued by accused to appellant
- 15.09.2020: Cheque presented for payment
- 17.09.2020: Cheque dishonoured by bank
- 22.09.2020: Legal notice issued under Section 138 NI Act
- 25.09.2020: Notice received by accused
- 10.11.2020: Private complaint filed before JMFC, Jabalpur
- 18.03.2025: JMFC acquitted the accused
- 15.04.2025: Appellant filed Criminal Appeal No. 4904 of 2025 under Section 378(4) CrPC
- 29.04.2026: Hearing before Madhya Pradesh High Court
The Parties' Positions
The appellant, as the victim of the offence, contended that she was entitled to appeal the acquittal under the proviso to Section 372 CrPC, as amended in 2009. The respondent argued that since the complaint was private, the appellant could only appeal under Section 378(4) CrPC, which requires special leave from the High Court.
Relief Sought
The appellant sought to maintain her appeal under the proviso to Section 372 CrPC, seeking reversal of the acquittal and conviction of the accused. Alternatively, she sought liberty to refile the appeal under the correct provision.
The Legal Issue
The central question was whether a victim of an offence under Section 138 of the Negotiable Instruments Act, who files a private complaint, may prefer an appeal against an order of acquittal under the proviso to Section 372 of the CrPC, without seeking special leave under Section 378(4) CrPC.
Arguments Presented
For the Appellant/Petitioner
Shri Naim Khan, learned counsel for the appellant, relied on the Supreme Court’s judgment in Celestium Financial v. A. Gnanasekaran (2025 SCC Online SC 1320), arguing that the proviso to Section 372 CrPC grants an independent right of appeal to any victim of an offence, irrespective of whether they are the complainant. He emphasized that the legislative intent behind the 2009 amendment was to empower victims, particularly in financial crimes like cheque dishonour, to seek redress without the procedural hurdle of special leave. He contended that Section 378(4) is inapplicable where the victim invokes the proviso to Section 372.
For the Respondent/State
The respondent did not file a written submission. At the hearing, the State counsel conceded that the issue was no longer res integra in light of Celestium Financial, but urged the Court to clarify the limitation period for filing the appeal under the correct provision.
The Court's Analysis
The Court observed that the issue had been authoritatively settled by the Supreme Court in Celestium Financial v. A. Gnanasekaran. The Apex Court held that the proviso to Section 372 CrPC, inserted with effect from 31.12.2009, was designed to grant victims an independent right of appeal against acquittal, distinct from the complainant’s rights under Section 378.
"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."
The Court noted that the appellant, as the payee of the dishonoured cheque, clearly qualified as a "victim" under Section 2(wa) CrPC. The Court further held that the appeal filed under Section 378(4) CrPC was procedurally defective because the appellant had not sought special leave. However, since the appellant had a clear statutory right under the proviso to Section 372 CrPC, the Court declined to dismiss the appeal outright.
The Court emphasized that the object of the proviso was to ensure access to justice for victims in financial crimes, and to interpret it narrowly would defeat legislative intent. The Court also clarified that the appeal under Section 378(4) could not be treated as a valid appeal under the proviso to Section 372, but the appellant must be given an opportunity to refile under the correct provision.
The Verdict
The appeal filed under Section 378(4) CrPC is dismissed as misdirected. The appellant, as victim, is granted liberty to file a fresh appeal under the proviso to Section 413 of the BNSS (corresponding to Section 372 CrPC) before the competent Appellate Court within four months from today. The issue of limitation shall not be raised by the respondent or the Appellate Court if the appeal is filed within this period, provided the delay in filing before this Court has been condoned or the appeal was filed within the limitation period under the Limitation Act. Certified copies of documents shall be returned to the appellant. The trial court record shall be sent back immediately.
What This Means For Similar Cases
Victim Appeals Under Section 138 NI Act Are Now Statutorily Protected
- Practitioners must now treat victims in cheque dishonour cases as having an automatic right to appeal acquittals under the proviso to Section 372 CrPC
- No application for special leave under Section 378(4) is required if the appeal is filed under the proviso to Section 372
- The victim’s status under Section 2(wa) CrPC is sufficient - no need to prove complainant status
Procedural Correction Is Permissible Within a Defined Window
- An appeal filed under the wrong provision (e.g., Section 378(4)) may be treated as a pending application for relief under the correct provision
- Courts must allow victims to refile under the proviso to Section 372 within four months of the judgment, even if the original appeal was time-barred
- Limitation objections cannot be raised by the accused if the refiled appeal is within the four-month window
Legislative Intent Overrides Technical Defects
- Courts must prioritize substantive justice over procedural technicalities in victim-centric provisions
- The 2009 amendment to Section 372 CrPC is to be interpreted liberally to empower victims
- This judgment reinforces the principle that victims are not mere witnesses but independent legal actors in criminal proceedings
