Bombay High Court

Ranjit S/O. Vinodkumar Asati vs Suresh Situlal Ballare on 14 November, 2025

2025:BHC-NAG:12100

1 23-Cr.APPEAL-21-2018

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.

CRIMINAL APPEAL NO. 21 OF 2018
Ranjit s/o Vinodkumar Asati
-- VERSUS --
Suresh Situlal Ballare
__________________________________________________________________________
Office Notes, Office Memoranda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
None for the Appellant.
None for the Respondent.

CORAM : M.M. NERLIKAR, J.

DATE : NOVEMBER 14, 2025.

Today, none appears for the parties.

2. On 07/11/2025, following order was passed :-

" Stand over to 14.11.2025.

2. In case none appears for the parties on
the next date, the appropriate order would be passed
in view of judgment of the Hon'ble Supreme Court
in case of Celestium Financial .vrs. A. Ganasekaran
Etc (2025 SCC Online SC 1320)"

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
2 23-Cr.APPEAL-21-2018

Court in case of Celestium Financial .vrs. A. Ganasekaran 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
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
3 23-Cr.APPEAL-21-2018

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
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
4 23-Cr.APPEAL-21-2018

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
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
5 23-Cr.APPEAL-21-2018

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, 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 matter be transferred to the concerned

District and Sessions Court for its disposal in accordance with law.
6 23-Cr.APPEAL-21-2018

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 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 12/12/2025.

(3) If the non-applicant/respondent is not served or to be 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 Celestium Financial (supra).

7 23-Cr.APPEAL-21-2018

(6) Registrar (Judicial) of this Court to take further necessary action for transferring this matter to the concerned District and Sessions Court immediately.

[ M.M. NERLIKAR, J ] Piyush Mahajan