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In the case of Paulose v. Baiju & Anr, the Kerala High Court ruled that the complainant in a prosecution under Section 138 of the Negotiable Instruments Act does not fall within the definition of ‘victim’ as provided in Section 2(wa) of the Criminal Procedure Code (CrPC). Section 2(wa) defines a victim as a person who has suffered any loss or injury due to the act or omission for which the accused is charged and includes their guardian or legal heir.
The petitioner filed a petition against the order of the Judicial First-Class Magistrate Court, Angamaly, which had acquitted the accused 1st respondent in the complaint filed under Section 142 of the Negotiable Instruments Act. However, the Registry noted a defect in the petition as it was filed beyond the period of limitation and without seeking condonation of the delay.
The petitioner’s advocates argued that according to the Full Bench decision in Sobhanakumari K. v. Santhosh @ Pallan Shaji (2018), after the Cr.P.C. Amendment Act, 2008, a victim has the right to appeal against an order acquitting the accused, and there is no specific period of limitation for filing such an appeal. They contended that the complainant in a Section 138 case should be considered a ‘victim’ under Section 2(wa) of the Cr.P.C. and, therefore, entitled to file an appeal under Section 372 of the Cr.P.C.
However, the court rejected this argument, citing its decision in Omana Jose v. State of Kerala (2014), where it was held that the term ‘victim’ in the context of Sections 372 and 378 of the Cr.P.C. does not include the complainant in a complaint case who is also the victim. Thus, in a Section 138 case, the complainant cannot challenge the order of acquittal before the Sessions Court under Section 372. The appropriate remedy would be to file an appeal with special leave under Section 378(4) of the Cr.P.C before the High Court.
The court disagreed with the petitioner’s counsel’s assertion that the decision in Omana Jose was overruled by the Apex Court’s decision in Mallikarjun Kodagali. It clarified that a ‘complaint’ under Section 2(d) of the Cr.P.C. refers to any allegation made orally or in writing to a Magistrate, and it excludes a police report. Section 378(4) allows the complainant to file an appeal against acquittal in a case initiated upon a complaint after obtaining special leave from the High Court.
Consequently, the court upheld the defect pointed out by the Registry regarding the petition’s limitation and ruled that the complainant in a Section 138 case cannot appeal against an acquittal before the Sessions Court but can do so before the High Court with special leave under Section 378(4) of the Cr.P.C.
WRITTEN BY- SWATI SUMAN, COLLEGE NAME – MODY UNIVERSITY OF SCIENCE AND TECHNOLOGY, RAJASTHAN, SEMESTER- 9TH SEMESTER AN INTERN UNDER LEGAL VIDHIYA
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