Criminal Original Petition is decided on the Criminal Appeal pending numbering
The criminal original petition in Crl.OP.No.27089 of 2024 in Crl.A.SR.No.49576 of 2024 has been filed seeking relief to file an appeal against the judgment passed in CC.No.40 of 2009 on the file of the Judicial Magistrate-III, Erode dated 27.06.2024, thereby dismissed the complaint and acquitted the respondents for the offence punishable under Section 138 of NI Act. The criminal original petition in Crl.OP.No.27094 of 2024 in Crl.A.SR.No.59577 of 2024 has been filed seeking grant leave to file an appeal against the order of acquittal under Section 419(4) of BNSS, 2023.
Section 419(4) BNSS: Under this provision appellant has to obtain special leave from the appellate court
2. It is relevant to extract the provisions under Section 419(4) of BNSS, 2023 (Section 378(4) of Cr.P.C.), hereunder:
“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.”
Thus, in an appeal against the order of acquittal passed in a case instituted upon a complaint, the application has to be made to grant leave by the complainant to file an appeal against the order of acquittal before this Court.
Since complainant is termed as victim, any appeal preferred by the victim shall lie to the court to which the appeal ordinarily lies
3. It is also relevant to rely upon the provisions under Section 413 of BNSS, 2023(Section 372 of Cr.P.C.), which are extracted hereunder:
413. No appeal to lie unless otherwise provided:
No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Sanhita or 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.
Thus, it is clear 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 any compensation and such appeal shall lie to the court to which the appeal ordinarily lies. The present petition has been filed for grant leave to file an appeal against the order of acquittal under Section 419(4) of BNSS Act, 2023 (Section 378(4) of Cr.P.C.).
Hon’ble Supreme settled that complainant in section 138 N.I Act cases as victim
4. In this regard, the Hon’ble Supreme Court of India held in the case of M/s.Celestium Financial Vs. A.Gnanasekaran ETC. in SLP.(Crl)Nos.137-139 of 2025 reported in 2025 INSC 804, that against the order passed by this Court thereby dismissing the petition seeking leave to file an appeal against the order of acquittal in Crl.OP.Nos.929, 931 & 1034 of 2024 in Crl.A.SR.Nos.1282, 1300 & 1321 of 2024. The issue involved in the petition before the Hon’ble Supreme Court of India was that whether an appeal would be maintainable under the proviso to Section 372 of Cr.P.C. (Section 413 of BNSS, 2023) against the order of acquittal in a complaint filed under Section 138 of NI Act by treating the complainant in such a proceeding as a victim within the meaning ascribed to the term under Section 2 (wa) of Cr.P.C. (Section2(1)(y) of BNSS, 2023). In this issue, the Hon’ble Supreme Court of India held as follows:
“Paragraphs. 7 to 10” and the relevant paragraph no.9 is as follows:
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.
Madras High Court decided the jurisdiction to file appeal against acquittal in cheque cases: Thus, the Hon’ble Supreme Court of India held that the complainant in a complaint filed under Section138 of NI Act, shall be deemed to be a victim. Therefore, the victim can file an appeal under Section 372 of Cr.P.C (Section 413 of BNSS, 2023) without seeking any special leave to file an appeal from this Court. Further, a person who is a complainant under Section 200 of Cr.P.C. who complains about the offence committed by a person who is charged as an accused under Section 138 of NI Act, has right to prefer an appeal as the victim under proviso to Section 372 of Cr.P.C. (Section 413 of BNSS Act, 2023).
5. In view of the above, the only point arising in this petition is that whether the above dictum laid down by the Hon’ble Supreme Court of India will have retrospective effect or prospective effect. On reading the above judgment, it does not say whether it will have effect retrospectively or prospectively. In this regard, in the case of Kanishk Sinha & Another Vs. The State of West Bengal & Another reported in 2025 INSC 278, the Hon’ble Supreme Court of India held as follows:
“Now the law of prospective and retrospective operation is absolutely clear. Whereas a law made by the legislature is always prospective in nature unless it has been specifically stated in the statute itself about its retrospective operation, the reverse is true for the law which is laid down by a Constitutional Court, or law as it is interpretated by the Court. The judgment of the Court will always be retrospective in nature unless the judgment itself specifically states that the judgment will operate prospectively. The prospective operation of a judgment is normally done to avoid any unnecessary burden to persons or to avoid undue hardships to those who had bona fidely done something with the understanding of the law as it existed at the relevant point of time. Further, it is done not to unsettle something which has long been settled, as that would cause injustice to many.”
Conclusion
Date of filing is decided
6. Therefore, when there is no specific explicit mentioning of the date on which the dictum come into force or retrospectively or prospectively, it can be construed that it would come into effect retrospectively. But, in the present scenario, there are thousands of appeals against acquittal which were already filed, are pending. Therefore, if the order of the Hon’ble Supreme Court come into effect retrospectively, it will cause prejudice to the parties and also there will be practical difficulties to the Registry of this Court to transfer all the cases, which will burden the district judiciary. In order to avoid these difficulties, the order of the Hon’ble Supreme Court of India can be implemented prospectively and there will be no prejudice caused to any party in doing so. Number of appeals with regards to Section 138 of NI Act that were allowed through petition to grant leave by this Court before and after the order passed by the Hon’ble Supreme Court, are still pending. Therefore, this Court is inclined to draw an outer line to file a petition seeking leave to file an appeal against the order of acquittal to avoid the plethora of difficulties that would arise when the judgment is applied retrospectively. Hence, this Court fixes cut off date as 04.07.2025 (as the last date) for filing any petition seeking to grant leave to file an appeal against the order of acquittal under Section 419(4) of BNSS, 2023. The Registry of this Court is directed not to entertain any petition to grant leave to file an appeal under Section 378(4) of Cr.P.C. against the order of acquittal for the offences under Section 138 of NI Act from 07.07.2025. The District Courts are directed to entertain the appeals arising out of the judgment of acquittal under Section 372 of Cr.P.C. (Section 413 of BNSS, 2023) from 07.07.2025 onwards.
Direction issued to District Judiciary
7. The Registrar General is directed to circulate this direction to all the district courts concerned of Tamilnadu & Pondicherry by way of circular. It is made clear that the Registry of this Court can number the petitions / appeals which were already filed / returned for want of any query on or before 04.07.2025. Accordingly, these criminal original petitions are allowed and the Registry is directed to number the connected criminal appeals, if they are otherwise in order.
Party
SPAC Tapioca Products (I) Ltd vs. Arun Casuals India Ltd – Criminal Original Petition Nos. 27089 & 27094 of 2024 in Criminal Appeal (S.R) Nos. 49576 & 59577 of 2024 – 30.06.2025 – Hon’ble Mr. Justice G.K.Ilanthiriyan.
