ITO is “victim”, can appeal against CJM order acquitting accused u/s 276B rws 278B

Income Tax Officer is “victim” and have right to appeal under CrPC/BNS against acquittal of accused of default in deposit of TDS u/s 276B rws 278B of Income Tax Act.

In a recent judgment, Hon’ble Punjab and Haryana High Court held that Income Tax Officer (ITO) is “victim” and have right to appeal under CrPC /BNS against acquittal by CJM of accused u/s 276B rws 278B of Income Tax Act.

ABCAUS Case Law Citation:
4699 (2025) (08) abcaus.in HC

In the instant case, the Income Tax Officer (TDS) /the Applicant has filed an application seeking grant of leave to appeal against the judgment passed in 2022 of acquittal passed by learned Chief Judicial Magistrate CJM) in a complaint case under Section(s) 276-B read with Section 278-B of the Income Tax Act, 1961 (the Act).

The CJM by the said judgment dismissed the complaint filed by the applicant qua individual accused who were acquitted of the charges framed against them.

It is notable that section 372 of CrPC provides that no appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code 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.

The Hon’ble High Court observed that in a recent judgment, the Hon’ble Supreme Court held that a complainant in a Section 138 of Negotiable Instrument Act 1881 (the NI Act) case is a “victim” under Section 2(wa) CrPC and thus entitled to file an appeal against acquittal under the proviso to Section 372 CrPC. The judgment overruled the judgment of the Madras High Court and their Lordships’ answered the issue in affirmative that whether an appeal would be maintainable under the proviso to Section 372 Cr.P.C. (corresponding Section 413 of BNSS, 2023), against an order of acquittal passed in a case instituted upon a private complaint, by treating the complainant in such a proceeding as a ‘victim’ within the meaning ascribed to the term under Section 2(wa) of the Cr.P.C.

The Hon’ble High Court noted that after encapsulating in detail the provisions of Sections 2(d), (n) & (wa), 24, 200, 372, 377, 378, 386 of the Cr.P.C.; Sections 138, 139, 141, 142, 143 and 147 of the NI Act and the earlier view point of the Hon’ble Supreme Court, the debate whether the right of the victim to file an appeal against acquittal in a complaint case would fall under Section 372 or Section 378(4) of Cr.P.C., has been put to rest by the Hon’ble Supreme Court by holding that the ‘victim’ has a right to file an appeal under Section 372 of Cr.P.C. before the Court of Sessions.

The Hon’ble High Court further observed that the said judgment of the Apex Court has been followed and relied upon by the Bench as well as by a Co-ordinate Bench of the Court in a recent judgment. Therefore, no ground exited to take a different view in the present case.

Accordingly, the present application was disposed of by directing the Sessions Judge, to treat the present leave to appeal as an appeal filed under Section 372 of the Cr.P.C. (corresponding Section 413 of BNSS, 2023) and entrust the same to any appropriate Court to try the same.

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