Bombay High Court
The Old Goa Urban Co-Op. Credit Soc. ... vs Nitesh Suryakant Kavlekar And Anr on 25 November, 2025
2025:BHC-GOA:2296
2025:BHC-GOA:2296
CRMA 66-2023
vinita
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL MISC. APPLICATION NO.66 OF 2023
IN
CRIMINAL APPEAL NO.528 OF 2023/Filing
THE OLD GOA URBAN CO-OP
CREDIT SOC. LTD. REP.
THR. RECOVERY OFFICER
SWAPNIL R. KAVLEKAR ...APPLICANT.
VS
NITESH SURYAKANT
KAVLEKAR AND ANR. ...RESPONDENTS.
Mr. Rohan Kuncolinker and Ms Varsha Thakur, Advocates for
the Applicant/ Appellant.
Mr Gaurish Nagvenkar, Addl. Public Prosecutor for
Respondent No.2.
CORAM:- SHREERAM V. SHIRSAT, J.
DATED:-25th November, 2025.
P.C.:
1. The Applicant has approached this Court by filing the
present leave to appeal against the Judgment and Order dated
5.4.2023, passed by the Judicial Magistrate First Class, 'C'
Court Mapusa in Criminal Case No.OA/557/NIA/2018/C. The
Judicial Magistrate First Class, 'C' Court, Panaji Goa has
acquitted the Respondent No.1.
CRMA 66-2023
2. The Applicant herein is the original complainant who
had filed complaint under Section 138 of the Negotiable
Instruments Act against the Respondent No.1 herein being
Criminal Case No. OA/557/NIA/2018/C before the Judicial
Magistrate First Class, 'C' Court at Panaji Goa. The
Respondent No.1 has been acquitted. The Applicant thereafter
has filed the present leave to appeal on 18.7.2023. The same
was pending before this Court.
3. This Court vide order dated 30.09.2025, had issued
notice to Respondent No. 1 which was made returnable on
04.11.2025. As per the service report received from Porvorim
Police Station, Respondent No. 1 was not found at the given
address, and his wife informed the police officials that he was
out of the State. Further, on 04.11.2025, this Court had again
issued fresh notice, which was made returnable
on 25.11.2025, and permitted the Applicant to serve
Respondent No. 1 through private service and by all other
modes permissible under law. In compliance with the above
order, the Applicant, through his Advocate has effected
private service on Respondent No.1 through speed post
addressed to the Respondent No.1 and has placed on record
CRMA 66-2023
letter, postal receipt as well as an envelope which has returned
with the endorsement unclaimed. As notice sent to the
Respondent No.1 has returned unclaimed, it is considered that
the Respondent no.1 has been duly served.
4. 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
1 2025 (3) MLJ (Crl)147
CRMA 66-2023
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".
CRMA 66-2023
5. 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 5.4.2023 passed by the Judicial Magistrate First
Class, 'C' Court, Panaji Goa.
6. 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.
7. 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."
8. Taking into consideration the above and the Judgment
CRMA 66-2023
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
approach the Sessions Court by filing appropriate proceedings
to challenge the impugned Judgment and Order dated
5.4.2023. 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 5.4.2023
is condoned. The Registry to return the original certified copy
of the impugned Judgment and order dated 5.4.2023, to the
Applicant, which shall be replaced by a photocopy of the same
in the records of the Court.
9. The Applicant shall approach the Sessions Court within a
period of four weeks.
10. The Application is allowed to be withdrawn and disposed
of accordingly.
CRMA 66-2023
11. In view of the above, nothing survives in Criminal Appeal
No. 528 of 2023/Filing and hence the same stands disposed
of.
SHREERAM V SHIRSAT, J.
