Bombay High Court
Prabhavati Prabhakar Parab vs Dr. Shivanand Y. Gauns And 4 Ors on 17 November, 2025
2025:BHC-GOA:2226
CRMA25-2024
vinita
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL MISC. APPLICATION NO.25 OF 2024
IN
STAMP NUMBER MAIN NO.3779 OF 2019-Filing
KESHARSHA ADAMSHA
MAKANDAR ...APPLICANT.
VS
ALTAF PEERZADE AND ANR. ...RESPONDENTS.
Mr. S. Bodke, Advocate for the Applicant/Appellant.
Mr U. Sawant, Advocate for the Respondent No.1.
Mr G. Nagvenkar, Addl. Public Prosecutor for Respondent
No.2.
CORAM:- SHREERAM V. SHIRSAT, J.
DATED:- 17th November, 2025.
P.C.:
1. The Applicant has approached this Court by filing the
present leave to appeal against the Judgment and Order dated
31.8.2019, passed by the Judicial Magistrate First Class, 'A'
Court, Vasco Da Gama in Criminal Case No.OA/64/NIA/
2016/A. The Judicial Magistrate First Class, 'A' Court, Vasco
Da Gama, has acquitted the Respondent No.1.
2. The Applicant herein is the original complainant who
had filed complaint under Section 138 of the Negotiable
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Instruments Act against the Respondent No.1 herein being
Criminal Case No.OA/64/NIA/2016/A before the Judicial
Magistrate First Class, 'A' Court, Vasco Da Gama. The
Respondent No.1 has been acquitted. The Applicant thereafter
has filed the present leave to appeal on 11.11.2019. 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
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
1 2025 (3) MLJ (Crl)147
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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".
4. 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 Judgment and
Order dated 31.8.2019 passed by the Judicial Magistrate First
Class, 'A' Court, Vasco Da Gama.
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5. 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
learned Counsel for the Respondent No.1 has not disputed this
position of law.
6. 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."
7. 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 Judgment and Order dated
31.8.2019. 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 Judgment and Order dated 31.8.2019
is condoned. The Registry to return the original certified copy
of the impugned Judgment and order dated 31.8.2019, to the
Applicant, which shall be replaced by a photocopy of the same
in the records of the Court.
8. The Applicant shall approach the Sessions Court within a
period of four weeks.
9. The Application is allowed to be withdrawn and disposed
of accordingly.
10. In view of the above, nothing survives in Stamp Number
Main No. 3779 of 2019-Filing and hence, the same stands
disposed of.
SHREERAM V SHIRSAT, J.
Signed by: VINITA VIKAS NAIK
Designation: Private Secretary
Date: 17/11/2025 17:53:17
