Bombay High Court
Shantilal S/O. Motilal Jain vs Ajay S/O. Babulalji Khandelwal And Anr on 13 October, 2025
2025:BHC-AUG:28955
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
9 CRIMINAL APPEAL NO. 778 OF 2004
SHRIPAT SHANKARRAO PATIL
VERSUS
KHURSHID ALI ALISAB
AND
47 CRIMINAL APPEAL NO. 286 OF 2018
DEVIDAS S/O. VENKATRAO KHONDE
VERSUS
RAJKUMAR S/O. BABURAO PACHANGE
AND
49 CRIMINAL APPEAL NO. 178 OF 2020
YOGESHWARI NAGARI SAHAKARI PAT SANSTHA LTD., AMBAJOGAI,
THROUGH MANAGER GAJANAN SHUKLESHWAR KULKARNI
VERSUS
MOHAMMAD YUNUS MOHAMMAD KURESHI
AND
50 CRIMINAL APPEAL NO. 180 OF 2020
SHANTILAL S/O. MOTILAL JAIN
VERSUS
AJAY S/O. BABULALJI KHANDELWAL AND ANOTHER
AND
51 CRIMINAL APPEAL NO. 754 OF 2022
SATISH VISHWANATH DEBARE
VERSUS
VIJAY MACHHINDRA KALE AND ANOTHER
AND
52 CRIMINAL APPEAL NO. 579 OF 2024
MANDAR SANTOSH BHARGAVE
VERSUS
MADHUSUDHAN TRIMBAK RAJEBAHADDAR PRESIDENT M/S
khs/Oct.2025/778
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RAJEBAHADDAR HEART FOUNDATION PVT. LTD. AND OTHERS
AND
53 CRIMINAL APPEAL NO. 623 OF 2024
VAIJAYANTA DILIP BATHIYA
VERSUS
CHANDRAKANT PANDURANG JADHAV AND ANOTHER
AND
54 CRIMINAL APPEAL NO. 624 OF 2024
M/S PARIK GARMENT THROUGH PROPRIETOR SANTOSH
OMPRAKASH PARIK
VERSUS
NAGESH GULABRAO KALE
Mr.G.D.Kale, Mr.Ram S.Shinde, Mr.T.G.Gaikwad, Mr.Ashish P.Deshmukh
and Mr.S.P.Salgar h/f Mr.A.R.Devakate, Mr.Sanket Jangle h/f Mr.
R.R.Karpe, Mr.Akshay Kulkarni h/f Mr.Amit Yadkikar, Mr.Balraj P.Pande
and Mr.P.N.Kalani, Advocates for the appellants in respective appeals.
( CORAM : SUSHIL M. GHODESWAR, J. )
DATE : 13 OCTOBER, 2025
PER COURT :
1. By these appeals under Section 378(4) of the Code of
Criminal Procedure, the appellants prays for leave to file an appeal
against judgment and orders of acquittal passed by the concerned
learned Trial Court in respective petitions for the offence punishable
under Section 138 of the Negotiable Instruments Act.
khs/Oct.2025/778
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2. So far as the issue in respect of preferring Appeal under
Section 372 of the Code of Criminal Procedure by the
complainants/victims are concerned, the same was considered by the
Hon'ble Supreme Court in the matter of Celestium Financial Vs.
Ganasekaran Etc. [(2025) SCC OnLine SC 1320], wherein the Supreme
Court 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 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
khs/Oct.2025/778
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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 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."
khs/Oct.2025/778
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3. Considering the above position of law as laid down by the
Hon'ble Supreme Court, the learned Advocates appearing in the matters
for applicants/appellants submitted 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 Advocate prays that this matter be transferred to the
concerned District and Sessions Court for its' disposal in accordance
with law.
4. In that view of the matter and considering the observations
of the Hon'ble Supreme Court referred above, this matter is required to
be transferred for its disposal to the concern District Court. Hence, the
following order :-
ORDER
(1) The present proceedings be transferred to the concerned District
and Sessions Court. Learned Registrar (Judicial) of this Court to take
further necessary action for transferring these matters to the concerned
District and Sessions Court, immediately.
(2) The learned Trial Court to whom these matters will be assigned,
after registering it, shall issue notice to the concerned parties, and
thereafter, proceed further with the matters in accordance with law.
(3) The concerned Trial Court shall treat these matters as an appeal
under proviso to Section 372 of the Code of Criminal Procedure as per
the observations of the Hon'ble Supreme Court in case of Celestium
Financial (supra).
( SUSHIL M. GHODESWAR, J.)
