Bombay High Court
Prakash Madhukarrao Desai vs Dattatrya Sheshrao Desai(Prop. Of ... on 12 September, 2025
2025:BHC-NAG:9097
Order 1209apeal795.18
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 795/2018.
Prakash Madhukarrao Desai
.vrs.
Dattatraya Sheshrao Desai
____________________________________________________________________________________________
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
Shri D.R. Khapre, Advocate for the Appellant.
Shri R.S. Kurekar, Advocate for the Respondent.
CORAM : M.M. NERLIKAR, J.
DATE : SEPTEMBER 12, 2025.
Heard.
2. The principal challenge in this matter pertains to acquittal
in cases under Section 138 of the Negotiable Instruments Act. This
Appeal is filed under Section 378 of the Code of Criminal Procedure.
3. Vide order dated 25.01.2023, this Court has framed the
following question for being referred to appropriate Bench.
" Whether in case the transaction, is not
reflected in the Books of account and/or the Income
Tax Returns of the holder of the cheque in due
course and thus is in violation to the provisions of
Section 269 SS of the Income Tax Act, 1961,
whether such a transaction, can be held to be "a
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legally enforceable debt" and can be permitted to be
enforced, by institution of proceedings under
Section 138 of the Negotiable Instruments Act ?"
Division Bench of this Court on 19.08.2023 has answered the said
question and relevant consideration is reflected in paragraph no.18 of
the said judgment, which reads as under :
"18. In view of the aforesaid discussion, it is
held that a transaction not reflected in the books of
accounts and/or Income Tax returns of the holder of
the cheque in due course can be permitted to be
enforced by instituting proceedings under Section
138 of the Act of 1881 in view of the presumption
under Section 139 of the Act of 1881 that such
cheque was issued by the drawer for the discharge of
any debt or other liability, execution of the cheque
being admitted. Violation of Sections 269-SS and/or
Section 271-AAD of the Act of 1961 would not
render the transaction unenforceable under Section
138 of the Act of 1881. The decisions in Krishna P.
Morajkar, Bipin Mathurdas Thakkar and Pushpa
Sanchalal Kothari (supra) lay down the correct
position and are thus affirmed. The decision in
Sanjay Mishra (supra) with utmost respect stands
overruled."
4. 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 Court
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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 offence
under Section 138 of the Act. Symmetrical to a victim of an
offence, a victim of a deemed offence under Section 138 of
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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 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.
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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 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
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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."
5. Considering the above position of law as laid down by the
Supreme Court, the learned Counsel appearing in the matter for
appellant 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 Counsel prays that the matter be transferred to the
concerned District and Sessions Court for its disposal in accordance
with law.
6. In this view of the matter and considering the observations
of the Supreme Court referred above, the appeal is required to be
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transferred for its disposal to the concern District Court. Needless to
mention that the District Court shall take into consideration the
observations of the Division Bench of this Court in respect of the
answer to the question referred to it. Hence the following order.
ORDER
(1) The Appeal is transferred to the District and Sessions
Court, Washim who shall after registering the Appeal,
deal with the same in accordance with law, and the above
quoted observations in the matter.
(2) Parties shall appear before the District and Sessions
Court, Washim on 13.10.2025.
(3) The District and Sessions Court, Washim shall treat this
appeal under proviso to Section 372 of the Code as per
the observations of the Supreme Court in case of
Celestium Financial (supra).
(4) Registrar (Judicial) of this Court to take further necessary
action for transferring this matter to the District and
Sessions Court, Washim immediately.
JUDGE
Signed by: R.G. Dhuriya (RGD)
Designation:Rgd.
PS To Honourable Judge
Date: 16/09/2025 10:26:52
