[Cites 8, Cited by 0]
Madhya Pradesh High Court
Kamlesh vs Smt. Chitra Mishra on 12 January, 2026
NEUTRAL CITATION NO. 2026:MPHC-JBP:2798
1 CRA-887-2015
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI
ON THE 12th OF JANUARY, 2026
CRIMINAL APPEAL No. 887 of 2015
KAMLESH
Versus
SMT. CHITRA MISHRA
Appearance:
Shri Naveen Pandey - Advocate for appellant.
WITH
CRIMINAL APPEAL No. 907 of 2015
KAMLESH
Versus
SMT. CHITRA MISHRA
Appearance:
Shri Naveen Pandey - Advocate for appellant.
CRIMINAL APPEAL No. 908 of 2015
KAMLESH
Versus
SMT. CHITRA MISHRA
Appearance:
Shri Naveen Pandey - Advocate for appellant.
ORDER
These appeals have been filed under Section 378(4) of Cr.P.C. by
"victim/complainant" against the judgment dated 04.09.2012 passed by
Judicial Magistrate First Class Fast Track, Bhopal (M.P.) in Criminal Case
No.4526/2009, 4524/2009 and 4525/2009, whereby respondent/accused has
NEUTRAL CITATION NO. 2026:MPHC-JBP:2798
2 CRA-887-2015
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. 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
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
NEUTRAL CITATION NO. 2026:MPHC-JBP:2798
3 CRA-887-2015
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."
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 appeal, appellant 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.)
NEUTRAL CITATION NO. 2026:MPHC-JBP:2798
4 CRA-887-2015
within four months from today.
7. 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.
8. 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.
9. Record of the trial Court, if available, shall be sent back
immediately to the concerned Court.
10. Appeals filed by the appellant/victim are disposed of in term as
above.
(RAJENDRA KUMAR VANI)
JUDGE
Biswal
