[Cites 10, Cited by 0]
Bombay High Court
Ruprao Alias Rupkumar S/O Sadashivrao ... vs Kavita W/O Ghanshyam Sahu on 15 December, 2025
2025:BHC-NAG:14212
1 13-Cr.APPEAL-396-2013
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 396 OF 2013
Ruprao alias Rupkumar s/o Sadashivrao Mhaske
-- VERSUS --
Kavita w/o Ghanshyam Sahu
__________________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Ms. K.G. Fulzele, Advocate h/f. Mr. A.R. Khare, Advocate for
the Appellant.
CORAM : M.M. NERLIKAR, J.
DATE : DECEMBER 15, 2025.
The learned counsel, Ms. Fulzele, holding for Mr. A.R.
Khare, submits that Mr. R.N. Khare, who appears for appellant, is
no more and passed away before 10 years. However, she further
submits that she is holding for Mr. A.R. Khare and requested to
transfer the matter to the concerned District and Sessions Court in
view of Section 372 of the Code of Criminal Procedure, as well as
the judgment of the Supreme Court delivered in case of M/s.
Celestium Financial .Vrs. A. Gnanasekaran Etc (2025 SCC Online
SC 1320).
2. The principal challenge in this matter pertains to
2 13-Cr.APPEAL-396-2013
acquittal in case under Section 138 of the Negotiable Instruments
Act. This Application/Appeal is filed under Section 378 of the
Code of Criminal Procedure.
3. Now so far as the issue in respect of preferring Appeal
under Section 372 of the Code by the complainant/victim is
concerned, the same was considered by the Hon'ble Supreme
Court in case of M/s. Celestium Financial .Vrs. A. Gnanasekaran
Etc (2025 SCC Online SC 1320), wherein the Supreme Court has
held as under :
7.7 In the context of offences under the Act,
particularly under Section 138 of the said Act, the
complainant is clearly the aggrieved party who has
suffered economic loss and injury due to the default in
payment by the accused owing to the dishonour of the
cheque which is deemed to be an offence under that
provision. In such circumstances, it would be just,
reasonable and in consonance with the spirit of the
CrPC to hold that the complainant under the Act also
qualifies as a victim within the meaning of Section 2(wa)
of the CrPC. Consequently, such a complainant ought to
be extended the benefit of the proviso to Section 372,
thereby enabling him to maintain an appeal against an
order of acquittal in his own right without having to
seek special leave under Section 378(4) of the CrPC.
7.8 In the case of an offence alleged against an
3 13-Cr.APPEAL-396-2013
accused under Section 138 of the Act, we are of the view
that the complainant is indeed the victim owing to the
alleged dishonour of a cheque. In the circumstances, the
complainant can proceed as per the proviso to Section
372 of the CrPC and he may exercise such an option
and he need not then elect to proceed under Section
378 of the CrPC.
7.9 In this context, we wish to state that the proviso
to Section 372 does not make a distinction between an
accused who is charged of an offence under the penal
law or a person who is deemed to have committed an
offence under Section 138 of the Act. Symmetrical to a
victim of an offence, a victim of a deemed offence under
Section 138 of the Act also has the right to prefer an
appeal against any order passed by the court acquitting
the accused or convicting for a lesser offence or
imposing an inadequate compensation. When viewed
from the perspective of an offence under any penal law
or a deemed offence under Section 138 of the Act, the
right to file an appeal is not circumscribed by any
condition as such, so long as the appeal can be premised
in accordance with proviso to Section 372 which is the
right to file an appeal by a victim, provided the
circumstances which enable such a victim to file an
appeal are met. The complainant under Section 138 is
the victim who must also have the right to prefer an
appeal under the said provision. Merely because the
proceeding under Section 138 of the Act commences
with the filing of a complaint under Section 200 of the
CrPC by a complainant, he does not cease to be a victim
inasmuch as it is only a victim of a dishonour of cheque
who can file a complaint. Thus, under Section 138 of
the Act both the complainant as well as the victim are
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one and the same person.
.....
.....
8. The right to prefer an appeal is no doubt a
statutory right and the right to prefer an appeal by an
accused against a conviction is not merely a statutory
right but can also be construed to be a fundamental
right under Articles 14 and 21 of the Constitution. If
that is so, then the right of a victim of an offence to
prefer an appeal cannot be equated with the right of the
State or the complainant to prefer an appeal. Hence, the
statutory rigours for filing of an appeal by the State or by
a complainant against an order of acquittal cannot be
read into the proviso to Section 372 of the CrPC so as to
restrict the right of a victim to file an appeal on the
grounds mentioned therein, when none exists.
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
5 13-Cr.APPEAL-396-2013
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 51 the right to prefer an appeal as a
victim under the proviso to Section 372 of the CrPC.
10. As already noted, the proviso to Section 372 of
the CrPC 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
CrPC, 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
CrPC."
4. Considering the above position of law as laid down by
the Supreme Court, the learned Counsel appearing in the matter
for applicant/appellant submitted that under proviso to Section
6 13-Cr.APPEAL-396-2013
372 of the Code of Criminal Procedure, since the victim has a
right to prefer an appeal against the order passed by the Court
acquitting the accused or convicting accused for lesser offence or
imposing inadequate compensation, such appeal shall lie to the
Court to which the appeal ordinarily lies against the order of
conviction. In view of said proviso, the learned Counsel prays that
the matter be transferred to the concerned District and Sessions
Court for its disposal in accordance with law.
5. In this view of the matter and considering the
observations of the Supreme Court referred above, the matter is
required to be transferred for its disposal to the concerned District
Court, hence the following order.
ORDER
(1) The Application/Appeal is transferred to the
concerned District and Sessions Court, who shall after
registering the matter, deal with the matter in
accordance with law;
(2) Parties shall appear before the concerned District and
Sessions Court, on 19/01/2026;
(3) If the non-applicant/respondent is not served or to be
7 13-Cr.APPEAL-396-2013
served, in that case the concerned District and
Sessions Court shall issue notice and thereafter
proceed further with the matter;
(4) In case either of the parties remains absent after
transfer of the matter to the District and Sessions
Court, the concerned Court/ Judge shall issue notice
to the concerned party before proceeding with the
matter;
(5) The concerned District and Sessions Court shall treat
the matter as appeal under proviso to Section 372 of
the Code as per the observations of the Supreme
Court in case of M/s. Celestium Financial (supra);
(6) Registrar (Judicial) of this Court to take further
necessary action for transferring this matter to the
concerned District and Sessions Court immediately.
JUDGE
Piyush Mahajan
