Bombay High Court
Vijay Kanolkar vs Tousif @ Tousifahmed R. Momin Ana Anr on 15 October, 2025
2025:BHC-GOA:2045
CRMA32-2025
vinita
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL MISC. APPLICATION NO.32 OF 2025
IN
STAMP NUMBER MAIN NO.926 OF 2020/Filing
AMMRIKA KANDOLKAR ...APPLICANT.
VS
NILESH KEREKAR AND ANR. ...RESPONDENT.
Mr Deepak Gaonkar, Advocate for the Applicant/Appellant.
Mr Vibhav Amonkar, Advocate for Respondent no.1
Mr Gaurish Nagvekar, Addl. Public Prosecutor for
Respondent no.3.
CORAM:- SHREERAM V. SHIRSAT, J.
DATED:- 15th October, 2025.
P.C.:
1. The Applicant has approached this Court by filing the
present leave to appeal against the Judgment and Order
dated 30.11.2019, passed by the Judicial Magistrate First
Class, 'C' Court Mapusa in Criminal Case No.360/NIA/
2016/C. The Judicial Magistrate First Class, 'C' Court,
Mapusa, has acquitted the Respondent.
2. The Applicant herein is the original complainant who
had filed complaint under Section 138 of the Negotiable
Instruments Act against the Respondent herein being
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Criminal Case No.360/NIA/2016/C before the Judicial
Magistrate First Class, 'C' Court Mapusa. The complaint has
been dismissed and the Respondent has been acquitted. The
Applicant thereafter has filed the present leave to appeal on
12.03.2020. 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 in our
view, such a victim need not seek special leave to
1 2025 (3) MLJ (Crl)147
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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 30.11.2019 passed by the Judicial
Magistrate First Class, 'C' Court Mapusa.
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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
Respondent also acknowledges the said 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 approach the Sessions Court by filing
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appropriate proceedings to challenge the impugned
Judgment and Order dated 30.11.2019. 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 30.11.2019 is condoned. The
Registry to return the original certified copy of the impugned
Judgment and order dated 30.11.2019, 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. 926 of 2020/F and hence the same stands disposed
of.
SHREERAM V SHIRSAT, J.
Signed by: VINITA VIKAS NAIK
Designation: Private Secretary
Date: 15/10/2025 16:58:05
