Madhya Pradesh High Court
Shailesh vs Sandeep Jaiswal on 25 June, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:27607
1 CRA-2296-2011
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
CRIMINAL APPEAL No. 2296 of 2011
SHAILESH
Versus
SANDEEP JAISWAL
Appearance:
Shri Anand Nayak - Advocate for the appellant
Shri Abhinav Dubey - Advocate for the respondent.
Reserved on : 19.06.2025
Pronounced on : 25.06.2025
.......................................................................................................................................................
This criminal appeal having been heard and reserved for judgment, coming on
for pronouncement this day, Justice Achal Kumar Paliwal pronounced the
following:
ORDER
This appeal has been filed under Section 378(4) of Code of Criminal
Procedure by "victim" of an offence as defined under Section 138 of N.I.
Act against judgment dated 14.07.2009 passed by JMFC, Gadarwara in
Criminal Case No. 907/2006, whereby respondent/accused has been
acquitted of an offence under Section 138 of N.I. Act.
2. Aforesaid criminal case was instituted on the basis of private
complaint filed by the victim/appellant.
3. The question before this Court is whether instant appeal is covered
under proviso to section 413 of BNSS (372 of Cr.P.C.).
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2 CRA-2296-2011
4. Aforesaid issue has been recently dealt with and adjudicated by
Hon'ble Apex Court in Celestium Financial Vs. A. Gnanasekaran Etc., 2025
SCC Online SC 1320.
5. The central issue arising for adjudication in Celestium Financial
(supra) 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 in
such a proceeding as a victim within the meaning ascribed to the term under
Section 2(wa) of the Cr.P.C.
6. Aforesaid issue has been adjudicated and answered 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
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3 CRA-2296-2011
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 372
and need not advert to sub-section (4) of Section 378 of
the CrPC."
7. Hence, having regard to factual matrix of the instant case and
principle of law laid down by Hon'ble Apex Court in Celestium Financial
(supra), in this Court's considered opinion, in the instant appeal also,
victim/appellant has the right to prefer an appeal as a victim under the
proviso to Section 413 of BNSS (372 of Cr.P.C.) and he should proceed
under the proviso to Section 413 of BNSS (372 of Cr.P.C.) and need not
advert to sub Section 4 of Section 419 of BNSS (378(4) of Cr.P.C.). Hence,
liberty is reserved to the victim/appellant herein to file the appeal, having
regard to the proviso to Section 413 of BNSS (372 of Cr.P.C.) within four
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4 CRA-2296-2011
months from today.
8. However, it is made clear that if appeal was filed before this
Court within limitation or if appeal 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 appeal has been condoned and appeal 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 appeal 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.
9. Certified copy of documents, if any, filed by the victim/appellant
in the instant appeal, shall be returned back to victim/appellant after
substituting photocopy of the same.
10. Record of the trial Court, if available, shall be sent back
immediately to the concerned Court.
11. Appeal filed by the appellant/victim is disposed of in term as
above.
(ACHAL KUMAR PALIWAL)
JUDGE
L.R.
