[Cites 9, Cited by 0]
Bombay High Court
Sau. Nandatai Vasantrao Deoghare, R/O ... vs Vitthal Fakirji Mankar, R/O Sati Chowk, ... on 7 March, 2026
Order 21.apeal.261.2019
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 261/2019
Sau. Nandatai Vasantrao Deoghare ..vs.. Vitthal Fakirji Mankar
____________________________________________________________________________________________
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
Mrs. R.D. Raskar, Advocate for the appellant.
CORAM : M.M. NERLIKAR, J.
DATE : 07.03.2026
The principal challenge in this matter pertains to acquittal
in case under Section 138 of the Negotiable Instruments Act. This
Application/Appeal is filed under Section 378 of the Code of
Criminal Procedure.
2. 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
in case of M/s. Celestium Financial .Vrs. A. Gnanasekaran 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
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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
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
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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.
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,
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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
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
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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."
3. Considering the above position of law as laid down by the
Supreme Court, the learned Counsel appearing in the matter for
applicant/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.
4. In this view of the matter and considering the observations
of the Supreme Court referred above, the matter is required to be
transferred for its disposal to the concerned District Court, hence the
following order.
ORDER
(1) The Application/Appeal is transferred to the concerned
District and Sessions Court, who shall after registering the
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matter, deal with the matter in accordance with law;
(2) Parties shall appear before the concerned District and
Sessions Court, on 06.04.2026;
(3) If the non-applicant/respondent is not served or to be
served, in that case the concerned District and Sessions
Court shall issue notice and thereafter proceed further
with the matter;
(4) In case either of the parties remains absent after transfer
of the matter to the District and Sessions Court, the
concerned Court/ Judge shall issue notice to the
concerned party before proceeding with the matter;
(5) The concerned District and Sessions Court shall treat the
matter as appeal under proviso to Section 372 of the
Code as per the observations of the Supreme Court in
case of M/s. Celestium Financial (supra);
(6) Registrar (Judicial) of this Court to take further necessary
action for transferring this matter to the concerned
District and Sessions Court immediately.
JUDGE
Signed by: Trupti D. Agrawal
Designation:PIYUSH
PA To Honourable
MAHAJAN Judge
Date: 07/03/2026 16:52:05
