[Cites 8, Cited by 0]
Madhya Pradesh High Court
Bholaram vs Shri Mukesh Kumar Kha on 15 December, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:67341
1 MCRC-11879-2014
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE B. P. SHARMA
ON THE 15th OF DECEMBER, 2025
MISC. CRIMINAL CASE No. 11879 of 2014
BHOLARAM
Versus
SHRI MUKESH KUMAR KHA
Appearance:
Shri Vidya Prasad - Advocate for the petitioner.
None for respondent.
ORDER
This application has been filed by the complainant against the
judgment passed by the learned Additional Chief Judicial Magistrate,
Jabalpur dated 04-02-2014 in CC No. 28530/2006 whereby the learned trial
Court has acquitted the respondent for the charge under Section 138 of NI
Act, 1881.
2. Aforesaid criminal case was instituted on the basis of private
complaint filed by the victim/complainant.
3. The question before this Court is whether instant petition is
covered under proviso to section 413 of BNSS (372 of Cr.P.C.).
4. The aforesaid issue is no longer res integra in light of the
judgment of Hon'ble Apex Court in the case of Celestium Financial Vs. A.
Gnanasekaran Etc., 2025 SCC Online SC 1320. The issue arose in said
adjudication was whether an appeal would be maintainable under the proviso
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to Section 372 of the Code of Criminal Procedure, 1973 against an order of
acquittal passed in a case instituted upon a private complaint under Section
138 of the Negotiable Instruments Act, 1881 by treating the complainant as a
victim within the meaning prescribed under Section 2(wa) of the Cr.P.C.
5 . It is observed by Hon'ble Apex Court in para 9 and 10 of
Celestium Financial (supra) 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 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
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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."
6. Having regard to the law laid down in the aforesaid case as well
as the factual matrix of the instant case, this Court is of the considered view
that in the present petition, petitioner as a victim has a right to prefer an
appeal under the proviso to Section 413 of the BNSS (372 of Cr.P.C.) and he
may proceed with accordingly and it is not at all needed to advert to sub
section 4 of Section 419 of the BNSS [378(4) of Cr.P.C.]. Hence, liberty is
reserved to the victim/petitioner herein to file an appeal before the competent
court, having regard to the proviso to Section 413 of BNSS (372 of Cr.P.C.)
within four months from today.
7. However, it is made clear that if petition was filed before this
Court within limitation or if petition was not filed within limitation before
this Court but issue of limitation has already been decided by this Court and
the delay in filing the petition has been condoned and petition before
concerned Sessions Court is filed within the period of four months from
today, then, issue of limitation shall not be raised by respondent or by the
Appellate Court, but if petition was not filed before this Court within
limitation as prescribed in the Limitation Act or any application for
condonation of delay is pending today, then, the issue of limitation/ the same
shall be decided by the Appellate Court in accordance with provisions of
law.
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8. Certified copy of documents, if any, filed by the victim/petitioner
in the instant petition, shall be returned back to victim/petitioner after
substituting photocopy of the same.
9. Record of the trial Court, if available, shall be sent back
immediately to the concerned Court.
10. Petition filed by the petitioner /victim is disposed of in terms as
stated above.
(B. P. SHARMA)
JUDGE
PG
