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Karnataka High Court
Sri Shamu vs Sri Surendra Raj Tiwari on 2 December, 2025
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NC: 2025:KHC:50292
CRL.A No. 729 of 2022
C/W CRL.A No. 728 of 2022
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF DECEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
CRIMINAL APPEAL NO. 729 OF 2022
C/W
CRIMINAL APPEAL NO. 728 OF 2022
IN CRL.A No. 729/2022
BETWEEN:
SRI SHAMU
S/O THIMMAIAH
AGED ABOUT 49 YEARS
R/AT 164/B
NEAR SAI BABA TEMPLE
VASANTHAPURA
UTTARAHALLI HOBLI
SUBRAMANYAPURA POST
BENGALURU - 560 061
Digitally signed by
LAKSHMINARAYAN N REPRESENTED BY HIS GPA HOLDER
Location: HIGH COURT
OF KARNATAKA SMT LAKSHMI
W/O SHAMU
AGED ABOUT 42 YEARS
R/AT # 164/B
NEAR SAI BABA TEMPLE
VASANTHAPURA
UTTARAHALLI HOBLI
SUBRAMANYAPURA POST
BENGALURU - 560 061
...APPELLANT
(BY SRI. FREUD RICHARDSON., ADV.)
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CRL.A No. 729 of 2022
C/W CRL.A No. 728 of 2022
HC-KAR
AND:
SRI. SURENDRA RAJ TIWARI
S/O BHEEMARAM TIWARI
AGED 40 YEARS
E-99/1, CHIMASANDRA
BIDARAHALLI HOBLI
BENGALURU EAST TALUK
BENGALURU - 560 049
...RESPONDENT
(BY SRI. NAUSHAD PASHA., ADV.)
THIS CRL.A IS FILED U/S.378(4) CR.P.C PRAYING TO
ALLOW THE APPEAL AND SET ASIDE THE ORDER DATED
26.11.2021 IN C.C.NO.8830/2017 FOR OFFENCE P/U/S.138 OF
NI ACT PASSED BY THE LEARNED XVI A.C.M.M., JUDGE
BENGALURU (ANNEUXRE-A).
IN CRL.A NO. 728/2022
BETWEEN:
SRI SHAMU
S/O THIMMAIAH
AGED ABOUT 49 YEARS
R/AT 164/B
NEAR SAI BABA TEMPLE
VASANTHAPURA
UTTARAHALLI HOBLI
SUBRAMANYAPURA POST
BENGALURU - 560 061
REPRESENTED BY HIS GPA HOLDER
SMT LAKSHMI
W/O SHAMU
AGED ABOUT 42 YEARS
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CRL.A No. 729 of 2022
C/W CRL.A No. 728 of 2022
HC-KAR
R/AT # 164/B
NEAR SAI BABA TEMPLE
VASANTHAPURA
UTTARAHALLI HOBLI
SUBRAMANYAPURA POST
BENGALURU - 560 061
...APPELLANT
(BY SRI. FREUD RICHARDSON., ADV.)
AND:
SRI SURENDRA RAJ TIWARI
S/O BHEEMARAM TIWARI
AGED ABOUT 40 YEARS
#E-99/1 CHIMASANDRA
BIDARAHALLI HOBLI
BENGALURU EAST TALUK
BENGALURU - 560 049
...RESPONDENT
(VIDE ORDER DATED: 03.11.2025 BAILABLE WARRANT
EXECUTED AGAINST THE RESPONDENT.)
THIS CRL.A. IS FILED U/S.378(4) CR.P.C PRAYING TO
ALLOW THE APPEAL AND SET ASIDE THE ORDER DATED
26.11.2021 IN C.C.NO.8826/2017 FOR THE OFFENCE
P/U/S.138 OF NI ACT, PASSED BY THE LEARNED XVI
ADDITIONAL CHIEF METROPOLITAN MAGISTRATE JUDGE,
BENGALURU (ANNEXURE-A).
THESE APPEALS, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE G BASAVARAJA
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CRL.A No. 729 of 2022
C/W CRL.A No. 728 of 2022
HC-KAR
ORAL JUDGMENT
1. These appeals are filed by the
appellant/complainant being aggrieved by the Orders dated
26th November, 2021 passed in CC No.8830 of 2017 and 8826
of 2017 by the XVI Additional Chief Metropolitan Magistrate,
Bengaluru (for short "the trial Court").
2. The Hon'ble Supreme Court in the case of
CELESTIUM FINANCIAL v. A GNANASEKARAN ETC. reported in
2025 SCC ONLINE SC 1320, at paragraph 10 of the judgment,
has observed as under:
"10. As already noted, the proviso to Section 372
of CrPC was inserted in the statue 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
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 Cr.PC."
3. In the light of the Hon'ble Supreme Court's recent
clarification of the legal position, it is now evident that the
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appellant, being the complainant under Section 138 of
Negotiable Instruments Act, 1881, is also entitled to file an
appeal against the judgment of acquittal passed by the trial
Court before the Sessions Court, since he is considered to be a
victim. If this Court were to proceed to hear and decide the
appeal at this stage, it could deprive the parties of an available
forum, i.e. this Court, for further challenge.
4. Similar view has been taken by the High Court of
Andhra Pradesh in CHARBEL INDIA V. STATE OF ANDHRA
PRADESH reported in 2025 SCC ONLINE AP 2815; by the High
Court of Madhya Pradesh in MANORAMA KANKANE v.
NARENDRA KUMAR SHUKLA rendered in Criminal Appeal
No.5910 of 2025 decided on 03rd July, 2025; and in the case of
LATE KISAN SEWA KENDRA v. PRITAM SINGH reported in 2025
SCC ONLINE MP 4818; and in SMT. URMITMADRAH v.
SAMARPAN JAIN rendered Criminal Appeal No. 11872 of 2022
decided on 21st July, 2025; the decision of High Court of
Chattisgarh in NEELAM SAHU v. NARADNAGWANSHI rendered
in ACQA No. 340 of 2018 decided on 16th July, 2025; and in
SMT. KIRTI KURIAN v. AJAY SINGH rendered in ACQA No. 198
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of 2019 decided on 16th July, 2025; the judgment of this Court
in the case of SIDAGONDAPPA v. SHAFIAHAMAD rendered in
CRL.A. No. 20021/2018 decided on 31st July, 2025 and in SRI
T.H. LENKAPPA v. SRI SANJAY AND ANOTHER rendered in
Criminal Appeal No.146 of 2015 decided on 23rd July, 2025; the
decision of High Court of Delhi in the case of D.K. ASSOCIATES
v. SHANKAR AND ANOTHER rendered in Criminal Appeal
No.694 of 2016 decided on 13th November, 2025 and the
decision rendered by the Co-ordinate Bench of this Court in the
case of M/S. ANANYA ENTERPRISES v. SRI G.S.
GOPALAKRISHNA rendered in Criminal Appeal No.100171 of
2016 decided on 24th November, 2025. An overall assessment
of the aforestated decisions reveals that the decision of the
Hon'ble Supreme Court in the case of CELESTIUM FINANCIAL
(supra) has been relied upon by this Court, as well as other
High Courts across the country.
5. Considering the above, it is deemed fit that these
appeals be transferred to the concerned appellate Court of
Sessions and be considered as an appeal under the proviso to
Section 413 of BNSS, 2023 (formerly Section 372 of Cr.PC) and
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numbered accordingly. Accordingly, I proceed to pass the
following:
ORDER
i. Registry is directed to transfer the entire
record of the case, including the requisitioned
copies of the trial court Records, to the
concerned Principal District & Sessions Judge,
who may assign it to the concerned Appellate
Court having the jurisdiction and for which
purpose, it would be listed before the Principal
District & Sessions Judge;
ii. The concerned transferee court is directed to
issue Court notice to both the parties to appear
before the concerned Court, and the concerned
Court, thereafter, shall proceed with the case
in accordance with law;
iii. In case there are applications pending for
condonation of delay or any other pending
applications, the same also be transferred to
be considered by the learned Judge of
transferee Court, in accordance with law;
iv. Considering the matter has been pending for
considerable time, the Appellate Court is
requested to make an endeavour to dispose of
the matters as expeditiously as possible;
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v. The appellant is permitted to carry out
necessary amendment in the cause-title and
also the provisions thereof;
vi. It is made clear that this Court has not made
any observations as to the merits of the case
and all rights and contentions of the parties are
left open to be agitated before the Court
concerned.
6. In the light of the above observation and directions,
appeals stand disposed of.
Sd/-
(G BASAVARAJA)
JUDGE
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