[Cites 5, Cited by 0]
Orissa High Court
M/S. Genjovials vs M/S. P.M. Enterprises ..... Opposite ... on 18 December, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLLP No.99 of 2012
M/s. Genjovials ..... Petitioner
Represented by Adv. -
M/s. Debasis Sarangi
-versus-
M/s. P.M. Enterprises ..... Opposite Party
Represented by Adv. -
M/s. Ranjan Kumar Rout
& Prasanta Kumar
Mishra
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
ORDER
18.12.2025
Order No.
06. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. No one appears on behalf of either party. Perused the
application as well as the prayer made therein.
3. The present application has been filed under Section 378(4) of
the Cr.P.C. by the Petitioner-Complainant against the judgment of
acquittal dated 26.03.2012 passed by the learned J.M.F.C.,
Bhubaneswar in I.C.C. Case No.3644 of 2010, which corresponds to
T.R. No.262 of 2011.
4. The above noted I.C.C. case was registered on the basis of a
complaint alleging commission of an offence punishable under
Section 138 of the N.I. Act. During the trial the accused was
summoned and he faced trial. Eventually, the learned trial court has
delivered the judgment of acquittal against the Accused-Opposite
party. Being aggrieved by such judgment, the Petitioner-
Complainant has approached this Court by filing the present
application under the provision of Section 378(4) of the Cr.P.C.
seeking leave to prefer an appeal.
5. While analysing the law regarding the right of a Complainant
to prefer an appeal, the Hon'ble Supreme Court in Celestium
Financial vs. Gnanasekaran Etc. reported in (2025) SCC Online
SC 1320, has observed that the Complainant in a case under Section
138 of N.I. Act is a 'victim' and, as such, has the right to prefer an
appeal under the proviso to Section 372 of the Cr.P.C.
6. On perusal of the judgment of the Hon'ble Supreme Court in
Celestium Financial's case (Supra), this Court observes that the
Hon'ble Supreme Court has equated the Complainant with the victim
as has been described in the proviso to Section 372 of Cr.P.C.
Accordingly, the right of the Complainant to prefer an appeal under
the proviso to Section 372 has been recognised by the Hon'ble
Supreme Court and the Complainant was granted liberty to prefer an
appeal against the judgment of acquittal under the proviso to Section
372 of the Cr.P.C. In the aforesaid context, it would be profitable to
refer to the relevant portion of the judgment. Para-9 & Para-10 of the
judgment are quoted herein below:-
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 Cr.P.C., 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 Cr.P.C., 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 Cr.P.C. 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 Cr.P.C.
10. As already noted, the proviso to Section 372 of the
Cr.P.C. 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 Cr.P.C.,
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 Cr.P.C."
7. In view of the aforesaid conclusion of the Hon'ble Supreme
Court in Celestium Financial's case (supra), this Court is of the
view that the Complainant can very well prefer an appeal under the
proviso to Section 372 of Cr.P.C. before the Appellate Court instead
of seeking leave of this Court under Section 378(4) of the Cr.P.C.
8. Keeping in view the law laid down by the Hon'ble Supreme
Court in Celestium Financial's case (supra), this Court disposes of
the leave application by granting liberty to the Petitioner to prefer an
appeal under the proviso to Section 372 Cr.P.C. within a period of
four weeks from today along with an application for condonation of
delay. In such eventuality, the Appellate Court shall consider the
application for condonation of delay by taking a lenient view.
9. With the aforesaid observations and directions, the CRLLP
stands disposed of.
( A.K. Mohapatra )
Judge
Debasis
