[Cites 4, Cited by 0]

Bombay High Court

Agascio Dsouza vs Phyllis Dsouza And 5 Ors on 22 December, 2025

2025:BHC-GOA:2534
2025:BHC-GOA:2534
CRIA 17-2019

vinita

IN THE HIGH COURT OF BOMBAY AT GOA

CRIMINAL APPEAL NO.17 OF 2019.

RAJKUMAR D. KAUTHANKAR ...APPELLANT

SANTOSH VITHOBA TANDEL
AND ANR. ...RESPONDENTS.

None for the Appellant.
Mr P. Faldessai, Addl. Public Prosecutor for the State.

CORAM:- SHREERAM V. SHIRSAT, J.

DATED:-22nd December, 2025.

P.C.:
1. The Appellant has approached this Court being

aggrieved by the Judgment and Order dated 2.5.2018, passed

by the Judicial Magistrate First Class, Pernem, in Criminal

Case No.01/OA/NIA/2017. The Judicial Magistrate, First

Class, 'Pernem, has acquitted the Respondent.

2. The Appellant herein is the original complainant who

had filed complaint under Section 138 of the Negotiable

Instruments Act, against the Respondent herein, being

Criminal Case No. 01/OA/NIA/2017 before the Judicial

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Magistrate, First Class, Pernem. The Respondent has been

acquitted. Thereafter, the Appellant filed a Special Leave to

Appeal before this Court, which was granted vide order dated

1.4.2019. The Appeal was pending before this Court since

then.

3. The Apex Court in the case of Celestium Financial

V/s A. Gnanasekaran & ors.1, 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

1 2025 (3) MLJ (Crl)147

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CRIA 17-2019

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 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".

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4. 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."

5. 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 as such an appeal shall lie

to the court to which an appeal ordinarily lies against the order

of conviction of such Court. Therefore per the ruling of the

Apex Court, the complainant can approach the Sessions Court

under Section 413 of BNSS (old Section 372 of Cr.P.C) in order

to challenge the judgment and order of acquittal by way of

Appeal.

6. The Delhi High Court in the case of Krishan Lal VS

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Wasim Khan2, has observed in paragraphs 4 and 5 as

under:-

4. In the present case, it is observed that leave to
appeal under Section 378(4) was granted by this
Court on 23rd July, 2018, following which the
appeal was duly admitted. However, in light of the
Supreme Court's recent clarification of the legal
position, it is now evident that the Appellant,
being a complainant under Section 138 of NI Act,
is entitled to file an appeal against the impugned
judgment of acquittal under Section 413 of the
Bharatiya Nagarik Suraksha Sanhita, 2023
(previously Section 372 of the Cr.P.C.) before the
Sessions Court. If this Court were to proceed to
hear and decide the appeal at this stage, it could
deprive the parties of an available forum for
further challenge.
5. In light of the above, it is deemed fit to direct
that the present appeal be transferred to the
concerned Appellate Court of Sessions and be
considered as an appeal under the proviso to
Section 413 of BNSS. Let the appeal be numbered
accordingly.

7. The High Court of Punjab and Haryana at Chandigarh

2 CRL.A.783/2018 & CRL. M.A. 2037/2024 decided on 28.7.2025

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in the case of Kesar Singh vs Manjinder Singh3 has

observed at paragraphs 2 and 5 as under:-

"2. Vide order dated 01.05.2024, leave to appeal
was granted and the appeal was admitted for final
hearing.
5. In the light of the aforesaid decision of Hon'ble
Supreme Court as also guiding principle that
procedural rule must serve and not obstruct the
course of justice, this Court deem it appropriate to
direct the concerned Sessions Judge that the
present appeal be treated as one authoritatively
instituted under the proviso to Section 372 of the
Cr.P.C. and entrust the same to an appropriate
Court for disposal on merits."

8. In this case, the question of considering the delay will

not arise before the Sessions Court, as the Appeal which was

pending before this Court for final disposal, is being

transferred to the Sessions Court and the Appellant is not

required to institute any fresh proceedings before the Sessions

Court.

9. In light of the aforesaid decision of the Hon'ble Supreme

Court and various High Courts and bearing in mind the

3 CRA-AS-97-2024(O&M) decided on 29.9.2025

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guiding principle that procedural rules are intended to

advance and not obstruct, the course of justice and also that if

this Court is to proceed to hear and decide the appeal at this

stage, it could deprive the parties of an available forum for

further challenge, this Court therefore deems it appropriate to

direct the concerned Sessions Judge to treat the present

appeal as one duly instituted under the proviso to Section 413

as per BNSS (Section 372 of the Cr.P.C) and to assign the same

to an appropriate Court for disposal on its merits. It is made

clear that this Court has not heard the case on merits and all

the contentions of the parties are kept open to be agitated and

canvassed before the concerned Court.

ORDER

I. The present proceedings be transferred to the concerned District and Sessions Court. The Learned Registrar (Judicial) of this Court to take further necessary action for transferring this matter to the concerned District and Sessions Court, immediately. The Registry is directed to send, expeditiously, the complete records of the present appeal (including the paper book) to the District and Sessions Court. II. The Registry is directed to transmit a copy of this order along with the complete paper

CRIA 17-2019

book to the concerned Sessions Judge forthwith and to return the Trial Court records, if received, without delay. III. The Appeal is transferred to the concerned District and Sessions Court, who shall after registering the matter, deal with the matter in accordance with law.

IV. In case, either of the parties remains absent after the 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.

V. The concerned Court shall treat this matter as appeal under proviso to Section 413 as per BNSS (Section 372 of the Cr.P.C) as per the observations of the Hon'ble Supreme Court in the case of Celestium Financial (supra).

VI. Considering that the matter has been pending for a considerable time, the concerned Appellate Court is requested to make an endeavour to dispose of the appeal expeditiously.

Appeal stands disposed of accordingly.

SHREERAM V SHIRSAT, J.