[Cites 9, Cited by 0]
Madhya Pradesh High Court
Mahendra Singh vs Jitendra Mishra on 18 December, 2025
NEUTRAL CITATION NO. 2025:MPHC-JBP:69464
1 MCRC-14907-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE HIMANSHU JOSHI
ON THE 18 th OF DECEMBER, 2025
MISC. CRIMINAL CASE No. 14907 of 2023
MAHENDRA SINGH
Versus
JITENDRA MISHRA
Appearance:
Shri R.S. Patel - Advocate for applicant.
ORDER
Heard on I.A. No.7564/2023 - application under Section 5 of Limitation Act
for condonation of delay.
2. Considering the averments made in the application, supported by an affidavit
of the applicant, I find that good and sufficient cause is made out to condone the
delay. Hence, the IA is allowed. Delay in filing the appeal is hereby condoned.
3. Heard on the application under Section 378(4) of CrPC for grant of leave to
appeal. This application has been filed by the applicant against the judgment
passed by the Judicial Magistrate First Class, Sidhi District Sidhi dated
09.06.2022 in SC NIA No.71/2019, whereby the learned trial Court has acquitted
the respondent for the charge under Section 138 of N.I. Act, 1881.
4. Aforesaid criminal case was instituted on the basis of private complaint filed
by the victim/applicant.
5. The question before this Court is whether instant appeal is covered under
proviso to Section 413 of BNSS (372 of Cr.P.C.).
6. 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.,
NEUTRAL CITATION NO. 2025:MPHC-JBP:69464
2 MCRC-14907-2023
2025 SCC Online SC 1320. The issue arose in said adjudication was whether an
appeal would be maintainable under the proviso 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.
7. 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 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
NEUTRAL CITATION NO. 2025:MPHC-JBP:69464
3 MCRC-14907-2023
372 and need not advert to sub-section (4) of Section 378 of
the CrPC."
8. 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
case, the applicant 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/appellant 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.
9. Since, the appeal was not filed within limitation, but the same has been
condoned by allowing the delay application, thus, if appeal before the concerned
Session Court is filed within a period of four month from today, then the issue of
limitation shall not be raised.
10. Certified copy of documents, if any, filed by the victim/applicant in the
instant case, shall be returned back to victim/applicant after substituting photocopy
of the same.
11. Record of the trial Court, if available, shall be sent back immediately to the
concerned Court.
12. Accordingly, M.Cr.C stands disposed of in terms as stated above.
(HIMANSHU JOSHI)
JUDGE
pn
