Madhya Pradesh High Court
Ajay Kumar Channa vs Gokul Awasthi on 27 June, 2025
Author: Achal Kumar Paliwal
Bench: Achal Kumar Paliwal
NEUTRAL CITATION NO. 2025:MPHC-JBP:28073
1 CRA-5720-2025
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ACHAL KUMAR PALIWAL
ON THE 27th OF JUNE, 2025
CRIMINAL APPEAL No. 5720 of 2025
AJAY KUMAR CHANNA
Versus
GOKUL AWASTHI
Appearance:
Shri Ravendra Tiwari, Advocate for the appellant.
ORDER
This appeal has been filed under Section 378(4) of Code of Criminal
Procedure r/w Section 419(4) of BNSS by "victim" of an offence as defined
under Section 138 of N.I. Act against judgment dated 7.05.2025 passed by
JMFC, Jabalpur in SC NIA No. 1479/2019 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.).
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
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2 CRA-5720-2025
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 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
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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 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
Ansari
