# M/s Celestium Financial v. A. Gnanasekaran Etc

- **Citation:** 2025 INSC 804
- **Court:** Supreme Court of India
- **Decided:** 2025-04-08
- **Bench:** B.V. Nagarathna, Satish Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/m-s-celestium-financial-v-a-gnanasekaran-etc-38520
- **Pages:** 38

## Headnote

Issue arose as regards the maintainability of an appeal under
proviso to s.372 CrPC against order of acquittal in a case instituted
upon a private complaint u/s.138 Negotiable Instruments Act, by
treating the complainant in such proceeding as a victim within the
meaning ascribed to the term u/s.2(wa) CrPC.
Headnotes†
Code of Criminal Procedure, 1973 - ss.2(wa), 372, 378, 200 -
Negotiable Instruments Act, 1881 - s.138 - Respondents issued
cheques to appellant against the loan facility availed from the
appellant - Cheques dishonoured with the endorsement "funds
insufficient" on presentation - Statutory demand notices
by appellant - Non-compliance by respondents - Criminal
complaints by appellant against the respondents, however, the
magistrate acquitted them - Appellant filed petitions before the
High Court seeking special leave to appeal u/s.378(4) which
were dismissed - Correctness:
Held: Victim of an offence has the right to prefer an appeal inter
alia, against an order of acquittal in terms of the proviso to s.372,
irrespective of whether he is a complainant or not - Such victim need
not advert to sub-section (4) of s.378, which mandates obtaining
special leave to appeal from the High Court - Thus, the person
who is a complainant u/s.200 who complains about the offence
committed by a person who is charged as an accused u/s.138 of
the 1881 Act, thus has the right to prefer an appeal as a victim
under the proviso to s.372 - Right to prefer an appeal is a statutory
right - Right of a victim of an offence to prefer an appeal cannot
be equated with the right of the State or the complainant to prefer
an appeal - Thus, the statutory rigours for filing of an appeal by
* Author
[2025] 4 S.C.R.
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M/s Celestium Financial v. A. Gnanasekaran Etc.
the State or by complainant against order of acquittal cannot be
read into the proviso to s.372 so as to restrict the right of a victim
to file an appeal on the grounds mentioned therein, when none
exists - Thus, if a victim who is a complainant, proceeds u/s.378,
the necessity of seeking special leave to appeal would arise but if a
victim whether he is a complainant or not, files an appeal in terms
of proviso to s.372, then the mandate of seeking special leave to
appeal would not arise - In the context of offences under NI Act,
particularly u/s.138, the complainant is clearly the aggrieved party
who has suffered economic loss and injury due to the default in
payment by accused owing to the dishonour of cheque which is
deemed to be an offence under that provision - It would be just,
reasonable and in consonance with the spirit of the CrPC to hold
that the complainant under NI Act also qualifies as a victim within
the meaning of s.2(wa) - Consequently, such complainant ought to
be extended the benefit of the proviso to s.372, thereby enabling
him to maintain an appeal against an order of acquittal in his own
right without having to seek special leave u/s.378(4) - Symmetrical
to a victim of an offence, a victim of a deemed offence u/s.138
also has the right to prefer an appeal against any order passed
by the court acquitting the accused or convicting for a lesser
offence or imposing an inadequate compensation - Thus, u/s.138
both the complainant as well as the victim are one and the same
person - Impugned order set aside - Negotiable Instruments Act,
1881 - ss.139-143. [Paras 7.7, 7.8-11]
Code of Criminal Procedure, 1973 - ss.372, 378 - Appeal to be
preferred by the complainant - Complainant also the victim,
or complainant only an informant - Difference:
Held: s.378 clearly indicate that in case the complainant intends to
file an appeal against the order of acquittal, his right is circumscribed
by certain conditions precedent - If the complainant is not a victim
and the case is instituted upon a complaint, then sub-section (4)
requires that the complainant must seek special leave to appeal
from an order of acquittal from the High Court - However, if the
complainant is also a victim, he could p

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[2025] 4 S.C.R. 2612 : 2025 INSC 804
M/s Celestium Financial
v.
A. Gnanasekaran Etc.
(Criminal Appeal No(s). 1868-70 of 2025)
08 April 2025
[B.V. Nagarathna* and Satish Chandra Sharma, JJ.]
Issue for Consideration
Issue arose as regards the maintainability of an appeal under
proviso to s.372 CrPC against order of acquittal in a case instituted
upon a private complaint u/s.138 Negotiable Instruments Act, by
treating the complainant in such proceeding as a victim within the
meaning ascribed to the term u/s.2(wa) CrPC.
Headnotes†
Code of Criminal Procedure, 1973 - ss.2(wa), 372, 378, 200 -
Negotiable Instruments Act, 1881 - s.138 - Respondents issued
cheques to appellant against the loan facility availed from the
appellant - Cheques dishonoured with the endorsement "funds
insufficient" on presentation - Statutory demand notices
by appellant - Non-compliance by respondents - Criminal
complaints by appellant against the respondents, however, the
magistrate acquitted them - Appellant filed petitions before the
High Court seeking special leave to appeal u/s.378(4) which
were dismissed - Correctness:
Held: Victim of an offence has the right to prefer an appeal inter
alia, against an order of acquittal in terms of the proviso to s.372,
irrespective of whether he is a complainant or not - Such victim need
not advert to sub-section (4) of s.378, which mandates obtaining
special leave to appeal from the High Court - Thus, the person
who is a complainant u/s.200 who complains about the offence
committed by a person who is charged as an accused u/s.138 of
the 1881 Act, thus has the right to prefer an appeal as a victim
under the proviso to s.372 - Right to prefer an appeal is a statutory
right - Right of a victim of an offence to prefer an appeal cannot
be equated with the right of the State or the complainant to prefer
an appeal - Thus, the statutory rigours for filing of an appeal by
* Author
[2025] 4 S.C.R.
2613
M/s Celestium Financial v. A. Gnanasekaran Etc.
the State or by complainant against order of acquittal cannot be
read into the proviso to s.372 so as to restrict the right of a victim
to file an appeal on the grounds mentioned therein, when none
exists - Thus, if a victim who is a complainant, proceeds u/s.378,
the necessity of seeking special leave to appeal would arise but if a
victim whether he is a complainant or not, files an appeal in terms
of proviso to s.372, then the mandate of seeking special leave to
appeal would not arise - In the context of offences under NI Act,
particularly u/s.138, the complainant is clearly the aggrieved party
who has suffered economic loss and injury due to the default in
payment by accused owing to the dishonour of cheque which is
deemed to be an offence under that provision - It would be just,
reasonable and in consonance with the spirit of the CrPC to hold
that the complainant under NI Act also qualifies as a victim within
the meaning of s.2(wa) - Consequently, such complainant ought to
be extended the benefit of the proviso to s.372, thereby enabling
him to maintain an appeal against an order of acquittal in his own
right without having to seek special leave u/s.378(4) - Symmetrical
to a victim of an offence, a victim of a deemed offence u/s.138
also has the right to prefer an appeal against any order passed
by the court acquitting the accused or convicting for a lesser
offence or imposing an inadequate compensation - Thus, u/s.138
both the complainant as well as the victim are one and the same
person - Impugned order set aside - Negotiable Instruments Act,
1881 - ss.139-143. [Paras 7.7, 7.8-11]
Code of Criminal Procedure, 1973 - ss.372, 378 - Appeal to be
preferred by the complainant - Complainant also the victim,
or complainant only an informant - Difference:
Held: s.378 clearly indicate that in case the complainant intends to
file an appeal against the order of acquittal, his right is circumscribed
by certain conditions precedent - If the complainant is not a victim
and the case is instituted upon a complaint, then sub-section (4)
requires that the complainant must seek special leave to appeal
from an order of acquittal from the High Court - However, if the
complainant is also a victim, he could proceed under the proviso
to s.372, in which case the rigour of sub-section (4) of s.378,
which mandates obtaining special leave to appeal, would not arise
at all, as he can prefer an appeal as a victim and as a matter of
right - Thus, if a victim who is a complainant, proceeds u/s.378,
2614
[2025] 4 S.C.R.
Supreme Court Reports
the necessity of seeking special leave to appeal would arise but
if a victim whether he is a complainant or not, files an appeal in
terms of proviso to s.372, then the mandate of seeking special
leave to appeal would not arise. [Para 7.11]
Words and phrases - Victim - Meaning and scope - Discussed.
[Para 6.2-6.7.2]
Case Law Cited
Mallikarjun Kodagali (dead) represented through Legal
representative v. State of Karnataka [2018] 13 SCR 1 : (2019) 2
SCC 752; Esher Singh v. State A.P. [2004] 2 SCR 1180 : (2004)
11 SCC 585; Birichh Bhuian v. State of Bihar [1963] Supp. 2 SCR
328 : AIR 1963 SC 1120; Directorate of Enforcement v. Deepak
Mahajan [1994] 1 SCR 445 : (1994) 3 SCC 440 - referred to.
Books and Periodicals Cited
Black's Law Dictionary; Advanced Law Lexicon by P Ramanatha
Aiyar, 6th Edition, Volume I - referred to.
List of Acts
Constitution of India; Code of Criminal Procedure, 1973; Negotiable
Instruments Act, 1881; Code of Criminal Procedure (Amendment)
Act, 2008.
List of Keywords
Dishonour of cheque; Funds insufficient; Victim; Complainant;
Statutory demand notice; Justice Malimath Committee; Report
on 'Reforms of Criminal Justice System'; Victims right to appeal;
154th Report of the Law Commission; Committee on the Draft
National Policy on Criminal Justice; Professor Madhava Menon
Committee Report; Victim-oriented criminal justice; 221st Report
of Law Commission of India; Couched in negative language; Loss;
Injury; Criminologist B. Mendelsohn; Four fundamental criteria
of a victim; Social character of suffering; Social implications of
injurious act; Inferiority complex; Victimology; Charge; Accused
of any offence; Deeming fiction; Deemed offence; Special leave
to appeal; Mallikarjun Kodagali's case; United Nations General
Assembly's Declaration of Basic Principles of Justice for Victims
of Crime and Abuse of Power (1985).
[2025] 4 S.C.R.
2615
M/s Celestium Financial v. A. Gnanasekaran Etc.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No(s).
1868-1870 of 2025
From the Judgment and Order dated 12.06.2024 of the High Court
of Judicature at Madras in CRLOP Nos. 929, 931 and 1034 of 2024
Appearances for Parties
Adv. for the Appellant:
Danish Zubair Khan.
Advs. for the Respondents:
G. Sivabalamurugan, Selvaraj Mahendran, Ms. Meenakshi Rawat,
C. Adhikesavan, Ms. Ratna Priya Pradhan, Harikrishnan P.V.
Judgment / Order of the Supreme Court
Judgment
Nagarathna, J.
Leave granted.
2.
These appeals have been preferred by the appellant against the
common judgment dated 12.06.2024 passed by the High Court of
Judicature at Madras in Crl. O.P. Nos.929, 931 and 1034 of 2024
in Crl. A. SR. Nos.1282, 1300 and 1321 of 2024.
2.1 The central issue arising for adjudication in the instant appeals
is, whether an appeal would be maintainable under the proviso
to Section 372 of the Code of Criminal Procedure, 1973 (for
short, "CrPC") against an order of acquittal passed in a case
instituted upon a private complaint under Section 138 of the
Negotiable Instruments Act, 1881 (for short, "the Act"), by
treating the complainant in such a proceeding as a victim
within the meaning ascribed to the term under Section 2(wa)
of the CrPC.
Factual Background:
3.
Briefly stated, the facts of the case according to the appellant are
as under:
2616
[2025] 4 S.C.R.
Supreme Court Reports
3.1 The appellant herein is the complainant being a registered
partnership firm engaged in the business of finance. The
appellant had extended financial assistance to the respondents
over a period of time. It is the case of the appellant that
respondent No.1 was the principal borrower and in order to avail
further credit, he obtained additional loans through respondent
Nos.2 and 3, who acted at his behest. Respondent No.1 is
stated to be carrying on a catering business under the name
and style of "R.R. Caterers".
3.2 Respondent No.1 had on earlier occasions availed several loans
from the appellant. As on 27.04.2015, an outstanding sum of
Rs. 16,00,000/- stood due from him. Seeking further financial
accommodation, respondent No.1 along with his spouse entered
into a sale agreement dated 15.05.2015 with one Mr. S. Babu,
an employee of the appellant. Pursuant thereto, a further sum
of Rs. 20,00,000/- was sanctioned to him carrying interest at
18% per annum.
3.3 Thereafter, on 13.05.2016, respondent No.2 availed a loan
of Rs. 15,00,000/- from the appellant at an interest of 20%
per annum, repayable in twelve equal monthly instalments of
Rs. 1,25,000/. Respondent No.2 made partial repayments through
cash deposits dated 09.06.2016, 30.09.2016, and 15.07.2017.
Subsequently, on 30.11.2016, respondent No.3 availed a loan
of Rs. 12,00,000/- from the appellant, carrying interest at the
rate of 24% per annum. The loan was repayable over a period
of twelve months with EMIs fixed at Rs. 1,00,000/- each.
3.4 Thereafter, on 31.05.2017, respondent No.1 availed a further
loan facility from the appellant to the tune of Rs. 21,00,000/-,
carrying interest at 24% per annum. The interest component,
amounting to Rs. 2,94,000/-, was deducted upfront, and the net
sum of Rs. 18,06,000/- was disbursed to respondent No.1. The
loan was repayable over a period of seven months in equated
monthly instalments of Rs. 3,00,000/- each.
3.5 A few months later, on 17.07.2017, respondent No.1 secured an
additional loan from the appellant in a sum of Rs. 15,00,000/-,
with interest agreed at 22.5% per annum. From the sanctioned
amount, Rs. 1,42,500/- was appropriated towards interest and
the net principal of Rs. 13,57,500/- was determined. On the
[2025] 4 S.C.R.
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M/s Celestium Financial v. A. Gnanasekaran Etc.
specific request of respondent No.1, one EMI of Rs. 3,00,000/-
pertaining to the earlier loan was deducted and the effective
disbursal was Rs. 10,57,500/-. The loan was structured to be
repaid in five monthly instalments of Rs. 3,00,000/- each.
3.6 Subsequently, on 11.09.2017, respondent No.1 once again
sought financial assistance and was sanctioned a further sum
of Rs. 25,00,000/- carrying interest at the rate of 18% per
annum. After deducting interest to an extent of Rs. 3,75,000/-,
the net amount available stood at Rs. 21,25,000/-. At the
instance of respondent No.1, two EMIs of Rs. 3,00,000/- each
relating to earlier borrowings were adjusted and a final amount
of Rs.15,25,000/- was disbursed. The loan tenure was fixed at
ten months with equated monthly instalments of Rs. 2,50,000/-.
3.7 In partial discharge of his liability, respondent No.2 issued
a cheque bearing No.145325 dated 29.10.2018 for a sum
of Rs. 6,25,000/- in favour of the appellant. However, upon
presentation of the said cheque on 30.10.2018, it was
dishonoured with the endorsement "Funds Insufficient". Similarly,
respondent No.3 issued a cheque bearing no. 491078 dated
24.10.2018 for an amount of Rs. 10,00,000/- and when the
same was presented on 30.10.2018, it was returned unpaid
on 31.10.2018 for identical reasons.
3.8 Thereafter, the appellant issued separate statutory notices
dated 12.11.2018 under Section 138 of the Act, calling upon
respondent Nos.2 and 3 to honour the respective amounts.
Upon their failure to comply, the appellant instituted criminal
complaints before the Fast Track Court at Alandur, which came
to be registered as C.C. No. 417 of 2018 and C.C. No. 418 of
2018 respectively.
3.9 In discharge of his liability, respondent No.1 issued three
cheques bearing nos. 000150, 000191, and 000192, all dated
28.03.2019, in favour of the appellant. The said cheques were
presented for encashment on 21.06.2019 but were returned
dishonoured on 24.06.2019 with the endorsement "Funds
Insufficient". Consequently, a statutory demand notice dated
08.07.2019 was issued by the appellant to respondent No.1
under Section 138 of the Act. Upon his failure to make good
the payment, the appellant instituted a criminal complaint before
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[2025] 4 S.C.R.
Supreme Court Reports
the Fast Track Court at Alandur which was registered as C.C.
No. 285 of 2019.
3.10 For the sake of clarity and convenience, the particulars of
the cheques issued by the respondents said to be towards
discharge of their respective liabilities are as follows:
Sl.
No
Cheque
No.
Issued
by:
Amount
(Rs.)
Date of
Issuance of
cheques
Date of
Dishonour
of cheques
Case
No.
1
145325
Respt.
No.2
Rs. 6,25,000
29.10.2018
31.10.2018
C.C.
No.
417 of
2018
2
491078
Respt.
No.3
Rs.10,00,000
24.10.2018
31.10.2018
C.C.
No.
418 of
2018
3
000150
Respt.
No.1
Rs. 9,00,000
28.03.2019
24.06.2019
C.C.
No.
285 of
2019
4
000191
Rs. 12,00,000
5
000192
Rs. 25,00,000
3.11 By separate judgments dated 07.11.2023, the learned Judicial
Magistrate acquitted respondent Nos.1 to 3 for the offence
punishable under Section 138 of the Act in terms of Section
255(1) of the CrPC. The acquittal was premised on the finding
that the appellant had failed to discharge the burden of proving
the existence of a legally enforceable debt or liability and further,
respondent Nos.1 to 3 succeeded in rebutting the statutory
presumption available to the complainant under Section 139
of the said Act.
3.12 Being aggrieved by the judgments dated 07.11.2023, the
appellant preferred petitions before the High Court seeking
special leave to appeal under Section 378(4) of the CrPC in
Criminal Appeal SR Nos.1282, 1300 and 1321 of 2024 by
assailing the judgments rendered in C.C. Nos. 417 of 2018,
418 of 2018 and 285 of 2019, dated 07.11.2023.
3.13 By the common impugned order dated 12.06.2024, the High
Court dismissed the petitions filed by the appellant seeking
leave to appeal. The High Court observed that the grant of
[2025] 4 S.C.R.
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M/s Celestium Financial v. A. Gnanasekaran Etc.
leave under Section 378(4) of the CrPC is not a mere formality
but a substantive safeguard designed to protect the rights of
persons who, having been acquitted of criminal charges, ought
not to be subjected to further protracted litigation. It was further
held that the grant of leave is contingent upon the petitioner
before the Appellate Court to establish a prima facie case
that warrants interference. Referring to the present case, the
High Court held that the appellant could not demonstrate that
the conclusions arrived at by the learned Magistrate are so
perverse or manifestly erroneous as to result in a miscarriage
of justice. In the absence of such compelling grounds, the
High Court declined to exercise its discretionary jurisdiction
to grant leave to appeal. It is in these circumstances that the
appellant has approached this Court by way of the present
appeal assailing the legality and correctness of the impugned
order of the High Court dated 12.06.2024.
Submissions:
4.
We have heard learned counsel for the appellant and learned senior
counsel for the respondent at length. We have also perused the
material on record and the judgments cited at the Bar.
4.1 Learned counsel for the appellant contended that the High
Court was not right in refusing to grant leave under Section
378(4) of the CrPC on the ground that the appellant had not
demonstrated that the conclusions arrived at by the Magistrate
were erroneous or contrary to law. The High Court ought to
have exercised its discretion by granting leave to the appellant
to prosecute his appeal inasmuch as the impugned order has
now made the appellant remediless.
4.2 Alternatively, it was submitted that the appellant could also
be construed to be a victim of the offence committed by the
accused under Section 138 of the Act. If that is so, then as
a victim the appellant has a right to assail the judgment of
acquittal as per the proviso to Section 372 of the CrPC. In
such an event, the need for obtaining leave to file an appeal
would not arise at all. In this regard, proviso to Section 372
was contrasted with sub-section (4) of Section 378 of the
CrPC. It was contended that under proviso to Section 372
which has been in force with effect from 31.12.2009, as it
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[2025] 4 S.C.R.
Supreme Court Reports
was added by way of an amendment, the victim of an offence
has 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. Such an
appeal would lie to the Court to which an appeal ordinarily
lies against the order of conviction of such Court. The right
to file an appeal by a victim of an offence under the provision
to Section 372 CrPC is not circumscribed by the necessity of
obtaining leave to file an appeal. It was contended that under
sub-section (4) of Section 378 which deals with an appeal
against a judgment of acquittal in any case instituted upon
a complaint then on an application made to the High Court
by the complainant, it is only when special leave to appeal
is granted by the High Court from the order of acquittal, that
the complainant may present such an appeal to the High
Court. In the present case, the complaint under Section 138
of the Act was no doubt filed by the appellant herein but not
merely as a complainant but as a victim of the offence under
Section 138 of the Act. It was submitted that in all cases, the
victim may not be the complainant and vice-a-versa but if the
victim is also the complainant, then the victim could always
proceed under the proviso to Section 372 of the CrPC rather
than as a complainant under sub-section (4) of Section 378
of the CrPC. Therefore, in the instant case, the appellant
herein who ought to be considered as a victim of the offence
under Section 138 of the Act having been committed by the
accused has the right to prefer an appeal under Section 372
of the CrPC. Therefore, it was wholly unnecessary for the
appellant to have obtained special leave to appeal from the
High Court. For this reason also, the impugned order may be
set-aside and the matter may be remanded to the High Court
so that the High Court would enable the appellant herein to
file his appeal before the competent appellate Court. Learned
counsel for the appellant, therefore, sought for setting-aside
of the impugned order.
4.3 Per contra, learned counsel for the respondent/accused
submitted that the order of the High Court was on merits
and that the appellant has not proved his case against the
respondents herein. Therefore, the learned Magistrate rightly
acquitted the respondents herein. The High Court was also
[2025] 4 S.C.R.
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M/s Celestium Financial v. A. Gnanasekaran Etc.
justified in declining to grant the special leave to appeal from
the order of acquittal. There is no merit in the submissions
made by the learned counsel for the appellant. The appellant
is the complainant and, therefore, he sought for special leave
to appeal from the High Court against the judgment of acquittal
which has rightly been declined. Therefore, there is no merit in
this appeal and, therefore, the same may be dismissed.
5.
In Mallikarjun Kodagali (dead) represented through Legal
representative vs. State of Karnataka, (2019) 2 SCC 752
("Mallikarjun Kodagali"), there is a reference to four reports that
have dealt with the rights of victims of crime and the remedies
available to them. The same may be briefly discussed as under:
i.
The first report is the 154th Report of the Law Commission of
India of August, 1996. The said Report touched upon, inter
alia, compensation to be paid to the victim of crime, their
rehabilitation, etc.
ii.
In March 2003, Justice Malimath Committee submitted its report
on 'Reforms of Criminal Justice System'. Paragraph 2.21 in
the Chapter on Adversarial Rights under the sub-heading of
'Victims Right to Appeal', states as under:
"2.21. The victim or his representative who is a party
to the trial should have a right to prefer an appeal
against any adverse order passed by the trial court.
In such an appeal he could challenge the acquittal,
or conviction for a lesser offence or inadequacy of
sentence, or in regard to compensation payable to
the victim. The appellate court should have the same
powers as the trial court in regard to assessment of
evidence and awarding of sentence."
There is also discussion on other rights of victims under
the Chapter titled, 'Justice to Victims'. In paragraph 6.(14)
(v), Justice Malimath Committee made the following
recommendations:
"6. (14)(v) The victim shall have a right to prefer an
appeal against any adverse order passed by the
court acquitting the accused, convicting for a lesser
offence, imposing inadequate sentence, or granting
2622
[2025] 4 S.C.R.
Supreme Court Reports
inadequate compensation. Such appeal shall lie to
the court to which an appeal ordinarily lies against
the order of conviction of such court."
iii.
In July 2007, a Report of the Committee on the Draft National
Policy on Criminal Justice was submitted which is also known
as 'Professor Madhava Menon Committee Report'. Observations
with regard to providing victim-oriented criminal justice and a
balance between the constitutional rights of an accused and
victim of crime have been discussed. One of the suggestions
made is that the victim must be impleaded in the trial proceedings
so that such a party would have right to file an appeal against
an adverse order, particularly an order of acquittal.
iv.
In the 221st Report of the Law Commission of India submitted
in April, 2009, it has been noted that as the law then stood,
an aggrieved person could not file an appeal against an order
of acquittal. However, a revision petition could be filed. Noting
that the powers of a revisional court are limited and the process
involved is cumbersome, a recommendation was made by the
Law Commission that as against an order of acquittal passed
by a Magistrate, a victim should be entitled to file an appeal
before the revisional court. Similarly, in complaint cases, the
appeal should be provided to the Sessions Court instead of
the High Court. However, it was suggested that the aggrieved
person or complainant should have the right to prefer an appeal
with the leave of the appellate court.
v.
It was further recommended that Section 378 of the CrPC
requires an amendment with a view to enable filing of appeals
in complaint cases also in the Sessions Court, of course, subject
to the grant of special leave by it. Limited scope of powers of a
revisional court under Section 401 of the CrPC was taken note
of and it was suggested that there is a need to amend the CrPC.
5.1 Taking note of the aforesaid reports an amendment was brought
to Section 372 of the CrPC with effect from 31.12.2009 by
adding a proviso thereto.
5.2 The decisions of the Full Benches of the High Courts in the
matter of interpretation of the proviso to Section 372 of the
CrPC are highlighted by this Court in the case of Mallikarjun
[2025] 4 S.C.R.
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M/s Celestium Financial v. A. Gnanasekaran Etc.
Kodagali. There are also Division Bench decisions of the High
Courts taking different views.
Mallikarjun Kodagali:
5.3 This Court in Mallikarjun Kodagali, speaking through Lokur, J.
referred to the Declaration of the Basic Principles of Justice for
Victims of Crime and Abuse of Power adopted by the General
Assembly of the United Nations in the 96th Plenary Session
on 29.11.1985. It was observed in paragraphs 74, 75 & 76
as under:
"74. Putting the Declaration to practice, it is quite
obvious that the victim of an offence is entitled to a
variety of rights. Access to mechanisms of justice
and redress through formal procedures as provided
for in national legislation, must include the right to
file an appeal against an order of acquittal in a case
such as the one that we are presently concerned
with. Considered in this light, there is no doubt that
the proviso to Section 372 CrPC must be given life,
to benefit the victim of an offence.
75. Under the circumstances, on the basis of the
plain language of the law and also as interpreted by
several High Courts and in addition the resolution
of the General Assembly of the United Nations, it is
quite clear to us that a victim as defined in Section
2(wa) CrPC would be entitled to file an appeal before
the Court to which an appeal ordinarily lies against
the order of conviction. ...
76. ... The language of the proviso to Section 372
CrPC is quite clear, particularly when it is contrasted
with the language of Section 378(4) CrPC. The text
of this provision is quite clear and it is confined to an
order of acquittal passed in a case instituted upon a
complaint. The word "complaint" has been defined in
Section 2(d) CrPC and refers to any allegation made
orally or in writing to a Magistrate. This has nothing
to do with the lodging or the registration of an FIR,
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and therefore it is not at all necessary to consider
the effect of a victim being the complainant as far
as the proviso to Section 372 CrPC is concerned."
Consequently, the appeals in the said case were allowed and
the judgment and order of the High Court was set aside and the
matter was remanded to the High Court to hear and decide the
appeal against the judgment and order of acquittal once again.
5.4 In the said judgment, Deepak Gupta, J. was in complete
agreement with Lokur, J. on the fact that victims must be
permitted to access justice because it is sometimes found that
the investigating and prosecuting agency do not follow up cases
with zeal which is required and therefore proviso to Section
372 of the CrPC must be given a meaning which is realistic,
liberal, progressive and beneficial to the victim of the offences.
However, Deepak Gupta, J. was of the opinion that one cannot
ignore the rights of the accused and the procedure prescribed
by law. Hence, he disagreed with Lokur, J.'s view that a victim
can file an appeal in the High Court without seeking leave to
appeal in terms of Section 378(3) of the CrPC.
5.5 The only difference of opinion was with regard to whether the
victim is required to seek leave of the High Court even in an
appeal filed in the High Court. While dealing with this issue, it
was observed by Deepak Gupta, J. that prior to the insertion
of the proviso to Section 372 of the CrPC, the victim had
no right to file an appeal unless he was also a complainant.
This was because the State would represent the victim of the
crime. Therefore, the question, whether the victim, while filing
an appeal against the acquittal of an accused under proviso
to Section 372 of the CrPC in the High Court, is required to
obtain leave under Section 378(3) of the CrPC was answered
in the affirmative. In this regard, reference was made to subsection (4) of Section 378 which deals with an appeal filed by
the complainant. In case the order of acquittal is passed in a
case instituted upon a complaint, in such a case, an appeal
has to be filed in the High Court. Such an appeal cannot be
entertained unless the High Court grants special leave to
appeal from the order of acquittal. Sub-section (5) provides the
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limitation period for filing the petition for grant of special leave
to appeal in terms of sub-section (4). Sub-section (6) lays down
that in case the application for special leave to appeal filed by
a complainant under sub-section (4) is refused, then, no appeal
from that order of acquittal shall lie under sub-section (1) or
under sub-section (2). Thus, in a complaint case, complainant
can file an appeal only by seeking special leave to appeal in
case the appeal lay before the High Court.
5.6 Dealing with the concept of leave to appeal, especially when
the appeals are filed in the High Court, it was observed by
Deepak Gupta, J. that the presumption of innocence of every
accused is fortified and strengthened when the said accused
is acquitted by the trial court. Therefore, the High Court, at the
initial stage of deciding whether the leave is to be granted or
not, can go into the merits of the case and only if there are
arguable points involved, would the High Court grant leave to
appeal. This preliminary stage is provided to prevent meritless
appeals being filed before the High Court and to ensure that
innocent persons are not drawn to the High Court at the
appellate stage.
5.7 It was further noted that an appeal against an order of acquittal
passed by a Magistrate in respect of cognizable and nonbailable offences would lie to the Sessions Court and no leave
to appeal is required. However, an appeal with respect to
offences which are non-cognizable or bailable would lie to the
High Court. In such cases, leave to appeal is a prerequisite.
The remaining kinds of appeals are those appeals which lie to
the High Court against the judgments of the Sessions Court.
These are serious criminal matters relating to graver offences.
5.8 Even appeals against acquittals filed before the High Court
must be scrutinized with greater care. As opposed to Section
378(4) of the CrPC, where a complainant would file an appeal
against an order of acquittal which would require special leave
to appeal being obtained, in the case of an appeal filed by
a victim under proviso to Section 372 of the CrPC, no such
leave to appeal is required. Then the question raised was,
whether, a victim is to be placed on a higher pedestal than
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the complainant, although in certain cases, the victim and
the complainant may be one and the same person. Deepak
Gupta, J. considered a situation where 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 and the accused is acquitted. In such a case,
the complainant would have to seek special leave to appeal
whereas the victim who had not even approached the Court
at the initial stage would be entitled to file an appeal without
seeking leave to appeal. While considering this situation,
Deepak Gupta, J. observed that while expanding the rights of
the victim to file an appeal, such right must be balanced with
the rights of the accused. Hence, it was the view of Deepak
Gupta, J. that even in a case when an appeal is filed by a
victim, there has to be scrutiny and special leave to appeal
must be obtained as the victim cannot be placed on a higher
pedestal than the State or the complainant. It was his view
that by this condition being imposed, the right of the victim to
file an appeal is not taken away or in any way diluted. Thus,
according to his view, Sections 378 (3), 378 (4) and 372 of
the CrPC have to be read together and the victim is also
required to apply for leave to appeal before his appeal can be
entertained. Therefore, Deepak Gupta, J. concluded that the
right to file an appeal vested in the victim cannot be higher
than the right of filing an appeal which inheres in the State
and the complainant in a complaint case. Thus, if a victim files
an appeal against acquittal in the High Court, he has to seek
leave to appeal under Section 378 (3) of the CrPC.
5.9 If the interpretation as suggested by learned senior counsel for
the respondent is to be accepted by restricting the right of a
complainant in a cheque bounce case to file an appeal under
Section 378(3) of the CrPC subject to the conditions mentioned
thereto, we find that such a right would not only be illusory
but contrary to the intent and purpose of the amendment to
Section 372 of the CrPC, whereby the proviso thereto has been
added with effect from 31.12.2009 to give a right of an appeal
to a victim without there being any condition circumscribing
such a right.
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5.10 In light of the two opposite views expressed in the above
judgment of this Court, it is necessary to discuss certain
provisions of the CrPC and arrive at our own conclusions on
the point for consideration. We observe that we are inclined
to follow the view taken by Lokur, J. insofar as the right of a
victim of a crime to file an appeal is concerned.
Analysis of the Relevant Provisions of CrPC:
6.
Section 2 is the definition clause under which relevant definitions
are extracted as under:
"2. Definitions.-In this Code, unless the context
otherwise requires,-
xxx
(d) "complaint" means any allegation made orally or in
writing to a Magistrate, with a view to his taking action
under this Code, that some person, whether known or
unknown, has committed an offence, but does not include
a police report.
Explanation.-A report made by a police officer in a case
which discloses, after investigation, the commission of a
non-cognizable offence shall be deemed to be a complaint;
and the police officer by whom such report is made shall
be deemed to be the complainant;
xxx
(n) "offence" means any act or omission made punishable
by any law for the time being in force and includes any
act in respect of which a complaint may be made under
section 20 of the Cattle Trespass Act, 1871 (1 of 1871);
xxx
(wa) "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;
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24. Public Prosecutors.-
xxx
(8) The Central Government or the State Government may
appoint, for the purposes of any case or class of cases,
a person who has been in practice as an advocate for
not less than ten years as a Special Public Prosecutor:
Provided that the Court may permit the victim to engage
an advocate of his choice to assist the prosecution under
this sub-section.
CHAPTER XV
COMPLAINTS TO MAGISTRATES
200. Examination of complainant.-A Magistrate taking
cognizance of an offence on complaint shall examine upon
oath the complainant and the witnesses present, if any,
and the substance of such examination shall be reduced
to writing and shall be signed by the complainant and the
witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the
Magistrate need not examine the complainant and the
witnesses-
(a) if a public servant acting or purporting to act in the
discharge of his official duties or a Court has made
the complaint; or
(b) if the Magistrate makes over the case for inquiry or
trial to another Magistrate under section 192:
Provided further that if the Magistrate makes over the case
to another Magistrate under section 192 after examining
the complainant and the witnesses, the latter Magistrate
need not re-examine them.
xxx
CHAPTER XXIX
APPEALS
372. No appeal to lie unless otherwise provided.-
No appeal shall lie from any judgment or order of a Criminal
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Court except as provided for by this Code by any other
law for the time being in force:
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.
xxx
377. Appeal by the State Government against
sentence.-(1) Save as otherwise provided in subsection (2), the State Government may, in any case of
conviction on a trial held by any Court other than a High
Court, direct the Public Prosecutor to present an appeal
against the sentence on the ground of its inadequacy-
(a) to the Court of Session, if the sentence is passed
by the Magistrate; and
(b) to the High Court, if the sentence is passed by
any other Court.
(2) If such conviction is in a case in which the offence
has been investigated by the Delhi Special Police
Establishment, constituted under the Delhi Special Police
Establishment Act, 1946 (25 of 1946), or by any other
agency empowered to make investigation into an offence
under any Central Act other than this Code, the Central
Government may also direct the Public Prosecutor to
present an appeal against the sentence on the ground of
its inadequacy-
(a) to the Court of Session, if the sentence is passed by
the Magistrate; and
(b) to the High Court, if the sentence is passed by any
other Court.
(3) When an appeal has been filed against the sentence
on the ground of its inadequacy, the Court of Session or,
as the case may be, the High Court shall not enhance the
sentence except after giving to the accused a reasonable
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opportunity of showing cause against such enhancement
and while showing cause, the accused may plead for his
acquittal or for the reduction of the sentence.
(4) When an appeal has been filed against a sentence
passed under section 376, section 376A, section 376AB,
section 376B, section 376C, section 376D, section 376DA,
section 376DB or section 376E of the Indian Penal Code
(45 of 1860), the appeal shall be disposed of within a
period of six months from the date of filing of such appeal.
378. Appeal in case of acquittal.-(1) Save as otherwise
provided in sub-section (2), and subject to the provisions
of sub-sections (3) and (5),-
(a) the District Magistrate may, in any case, direct the
Public Prosecutor to present an appeal to the Court
of Session from an order of acquittal passed by a
Magistrate in respect of a cognizable and non-bailable
offence;
(b) the State Government may, in any case, direct the
Public Prosecutor to present an appeal to the High
Court from an original or appellate order of acquittal
passed by any Court other than a High Court not
being an order under clause (a) or an order of acquittal
passed by the Court of Session in revision.
(2) If such an order of acquittal is passed in any case
in which the offence has been investigated by the Delhi
Special Police Establishment constituted under the Delhi
Special Police Establishment Act, 1946 (25 of 1946), or by
any other agency empowered to make investigation into
an offence under any Central Act other than this Code,
the Central Government may, subject to the provisions
of sub-section (3), also direct the Public Prosecutor to
present an appeal-
(a) to the Court of Session, from an order of acquittal
passed by a Magistrate in respect of a cognizable
and non-bailable offence;
(b) to the High Court from an original or appellate order
of an acquittal passed by any Court other than a
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High Court not being an order under clause (a) or
an order of acquittal passed by the Court of Session
in revision.
(3) No appeal to the High Court under sub-section (1) or
sub-section (2) shall be entertained except with the leave
of the High Court.
(4) If such an order of acquittal is passed in any case
instituted upon complaint and the High Court, on an
application made to it by the complainant in this behalf,
grants special leave to appeal from the order of acquittal,
the complainant may present such an appeal to the High
Court.
(5) No application under sub-section (4) for the grant of
special leave to appeal from an order of acquittal shall
be entertained by the High Court after the expiry of six
months, where the complainant is a public servant, and
sixty days in every other case, computed from the date
of that order of acquittal.
(6) If, in any case, the application under sub-section (4)
for the grant of special leave to appeal from an order of
acquittal is refused, no appeal from that order of acquittal
shall lie under sub-section (1) or under sub-section (2).
xxx
386.