[Cites 4, Cited by 0]
Bombay High Court
Vpk Urban Cooperative Credit Society ... vs Pandharinath Saji Sawant on 12 December, 2025
2025:BHC-GOA:2457
2025:BHC-GOA:2457
CRMA23-2023
vinita
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL MISC. APPLICATION NO.23 OF 2023
IN
CRIMINAL APPEAL NO.49 OF 2023.
VPK URBAN
COOPERATIVE CREDIT
SOCIETY LTD REP. BY
PUNDALIK RAMA
PALYEKAR ...APPLICANT.
VS
PANDHARINATH SAJI
SAWANT ...RESPONDENT.
Mr. Omkar Prab, Advocate for the Applicant/Appellant.
Mr Rajiv Ambekar, Advocate for the Respondent through VC.
CORAM:- SHREERAM V. SHIRSAT, J.
DATED:-12th December , 2025.
P.C.:
1. The Applicant has approached this Court by filing the
present leave to appeal against the Order dated 6.12.2022
passed by the Judicial Magistrate, First Class "C" Court, Vasco
in Criminal Case No.132/OA/NIA/2021/C. The Judicial
Magistrate, First Class "C" Court, Vasco, has acquitted the
Respondent.
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2. The Applicant herein is the original complainant who
had filed complaint under Section 138 of Negotiable
Instruments Act, 1881 against the Respondent herein, being
Criminal Case No. 132/OA/NIA/2021/C before the Judicial
Magistrate, First Class 'C' Court, Vasco. The Respondent has
been acquitted. The Applicant thereafter filed the present
leave to appeal on 18.1.2023. The same was pending before
this Court.
3. In the case of Celestium Financial V/s A.
Gnanasekaran & ors.1, the Hon'ble Supreme Court in
paragraph nos. 9 and 10 has held as under:
"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 Code of
Criminal Procedure, 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
1 2025 (3) MLJ (Crl)147
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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 Code of Criminal Procedure, 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 Code of
Criminal Procedure 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 Code of Criminal Procedure.
10. As already noted, the proviso to Section 372 of the
Code of Criminal Procedure was inserted in the
statute book only with effect from 31.12.2009. The
object and reason for such insertion must be realised
and must be given its full effect to by a court. In view
of the aforesaid discussion, we hold that the victim of
an offence has the right to prefer an appeal under the
proviso to Section 372 of the Code of Criminal
Procedure, irrespective of whether he is a
complainant or not. Even if the victim of an offence is
a complainant, he can still proceed under the proviso
to Section 372 and need not advert to Sub-section (4)
of Section 378 of the Code of Criminal Procedure".
3. The ruling of the Apex Court was brought to the notice
of the Ld. Counsel for the Applicant herein, who is the
complainant and that the complainant can approach the
Sessions Court under Section 413 of BNSS (old Section 372 of
Cr.P.C) in order to challenge the said impugned Order dated
6.12.2022 passed by the Judicial Magistrate, First Class 'C'
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Court Vasco.
4. The learned Counsel for the Applicant has also not
disputed the said position of law and argued that if liberty is
granted and delay is condoned, he is ready and willing to
approach the Sessions Court under Section 413 of BNSS. The
Ld Counsel for the Respondent has not disputed the said
positon of law.
5. Section 413 of BNSS reads as under:
"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."
6. Taking into consideration the above and the Judgment
passed by the Hon'ble Supreme Court, there can be no doubt
that the victim has a right to prefer an appeal against the order
passed acquitting the Accused, and such an appeal shall lie to
the Court to which an appeal ordinarily lies against the order
of conviction of such Court, and therefore liberty is granted to
the present Applicant to withdraw the leave to appeal and
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approach the Sessions Court by filing appropriate proceedings
to challenge the impugned Order dated 6.12.2022. As the
Applicant had approached this Court within limitation, and
the leave to appeal was pending before this Court, the delay in
approaching the Sessions Court to challenge the impugned
Order dated 6.12.2022 is condoned. The Registry to return the
original certified copy of the impugned order dated 6.12.2022,
to the Applicant, which shall be replaced by a photocopy of the
same in the records of the Court.
7. The Applicant shall approach the Sessions Court within
a period of four weeks.
8. The Application is allowed to be withdrawn and
disposed of accordingly.
9. In view of the above, nothing survives in Criminal
Appeal No. 49/2023 Filing and hence the same stands
disposed of.
SHREERAM V SHIRSAT, J.
