[Cites 8, Cited by 0]
Madhya Pradesh High Court
Rajesh Devaliya vs Smt. Saurma Bai on 14 March, 2026
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2026:MPHC-JBP:20974
1 MCRC-39380-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE LOK ADALAT
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
SHRI ADITYA ADHIKARI, SR. ADVOCATE
ON THE 14th OF MARCH, 2026
MISC. CRIMINAL CASE No. 39380 of 2019
RAJESH DEVALIYA
Versus
SMT. SAURMA BAI AND OTHERS
Appearance:
Shri Manish Rajak, Advocate for petitioner
ORDER
This petition is filed under Section 378(IV) of the Code of Criminal
Procedure by the "victim" of an offence as defined under Section 138 of the
Negotiable Instruments Act, 1881 against judgment dated 21.5.2019 passed
by Judicial Magistrate First Class, Bhopal (M.P.) in Criminal Case
No.1203/2011 whereby respondent/accused has been acquitted of an offence
under Section 138 of the Negotiable Instruments Act, 1881.
The aforesaid issue is no longer res integra in light of the judgment of
the 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
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within the meaning prescribed under Section 2(wa) of the Cr.P.C. It is
observed by Hon'ble Apex Court in paragraphs 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
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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."
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 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
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four months from today.
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 respondents 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.
Certified copy of documents, if any, filed by the victim/petitioner in
the instant case, shall be returned back to him after substituting photocopy of
the same.
Record of the trial Court, if available, shall be sent back immediately
to the concerned Court.
In above terms, this petition is disposed of.
(VIVEK AGARWAL) (ADITYA ADHIKARI)
MEMBER MEMBER
amit
