9. In the circumstances, we fin d that Section 138 of the Act bein g in the nature of a penal provisi o n by a deeming fiction against a n accused who is said to have co m mitted an offence under the sai d 50 provision, if acquitted, can be proceeded against by a victim o f the said offence, namely, th e person who is entitled to th e proceeds of a cheque which ha s been dishonoured, in terms of th e proviso to Section 372 of the C r PC, as a victim. As already noted , a victim of an offence could als o be a complainant. In such a case , an appeal can be preferred eith e r under the proviso to Section 37 2 or under Section 378 by suc h a victim. In the absence of th e proviso to Section 372, a victi m of an offence could not have file d an appeal as such, unless he w as also a complainant, in whic h event he could maintain an ap p eal if special leave to appeal ha d been granted by the High Cour t and if no such special leave wa s granted then his appeal would n ot be maintainable at all. On th e other hand, if the victim of an o f fence, who may or may not be th e complainant, proceeds under t h e proviso to Section 372 of th e CrPC, then in our view, such a victim need not seek special leav e to appeal from the High Court . In other words, the victim of a n offence would have the right to prefer an appeal, inter alia, agains t an order of acquittal in term s of the proviso to Section 37 2 without seeking any special le a ve to appeal from the High Cour t only on the grounds mentio n ed therein. A person who is a complainant under Section 200 of the CrPC who complains abou t the offence committed by a pe r son who is charged as an accuse d under Section 138 of the Act, thus has 51 the right to prefer a n appeal as a victim under the pro v iso to Section 372 of the CrPC.
