Bombay High Court
Rajkumar Balraju Modikatala vs Pradeep S/O Yashwant Nagrale (Prop. M/S ... on 13 November, 2025
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.21/2012
(Rajkumar Balraju Madikatala Vs. Pradeep S/o Yashwant Nagrale)
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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None for the appellant.
Mr. A.R./Mrs V.A. Patil, Advocate for respondent.
CORAM: M. M. NERLIKAR, J.
DATED : 13/11/2025.
Heard.
2. The appeal is of the year 2012. On 15.10.2025,
none appeared for the parties, therefore the matter was
adjourned after Diwali Vacation. Today only the
respondent is present. None appears for the appellant.
The learned counsel for the respondent submits that in
view of judgment of the Supreme Court in case of
Celestium Financial .vrs. A. Ganasekaran Etc (2025 SCC
Online SC 1320), the matter be remitted to the District and
Sessions Court, Chandrapur. Therefore, considering the
fact that the present appellant is victim as held by the
Supreme Court in case of Celestium Financial (supra)
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,
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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
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
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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 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
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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
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."
3. Considering the above position of law as laid down by
the Supreme Court, the learned Counsel appearing in the matter
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for respondent submits that under proviso to Section 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 for respondent prays that
the matters be transferred to the concerned District and Sessions
Court for its disposal in accordance with law.
4. In this view of the matter and considering the
observations of the Supreme Court referred above, the matter
(application and appeal) is required to be transferred for the
disposal to the concern 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 matters, deal with the matter in accordance with
law.
(2) Parties shall appear before the concerned District and
Sessions Court, on 11.12.2025.
(3) If the non-applicant/respondent in any of these matters
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are not served or they are to be served, in that case the
concerned District and Sessions Court shall issue notice
to them and thereafter proceed further with the matter.
(4) The concerned District and Sessions Court are also
directed to take into consideration the matter wherein
this Court has appointed Advocate from Legal Aid
Panel, and if the said Advocate from the Legal Aid
Panel is unable to attend or appear before the Court
where the matter is transferred, in that eventuality, the
District Court shall take necessary steps for appointing
another Advocate from the Legal Aid panel for
defending the non-applicants/ respondents.
(5) 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/ies before proceeding with the matter.
(6) All the concerned District and Sessions Court shall
treat these matters as appeal under proviso to Section
372 of the Code as per the observations of the Supreme
Court in case of Celestium Financial (supra).
(7) Registrar (Judicial) of this Court to take further
necessary action for transferring these matters to the
concerned District and Sessions Court along with
record and proceedings, (if any) immediately.
( M. M. NERLIKAR, J.)
Gohane
Signed by: Mr. J. B. Gohane
Designation: PS To Honourable Judge
Date: 13/11/2025 19:20:09
