Orissa High Court
Itibrata Das vs Sripati Charan Badajena on 9 October, 2025
Author: Aditya Kumar Mohapatra
Bench: Aditya Kumar Mohapatra
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.421 of 2025
Itibrata Das ..... Appellant
Represented By Adv. -
Mr. Debakanta Mohanty
-versus-
Sripati Charan Badajena ..... Respondent
CORAM:
THE HON'BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
ORDER
09.10.2025
Order No.
02. 1. This matter is taken up through Hybrid Arrangement (Virtual
/Physical Mode).
2. Heard learned counsel for the Appellant. Perused the
application as well as the prayer made therein.
3. The present criminal appeal has been filed under Section
419(4) of the B.N.S.S., 2023 by the Complainant-Appellant seeking
leave to prefer an appeal against the judgment of acquittal dated
07.03.2025 passed by the learned Judicial Magistrate of the First
Class (LR & LTV), Bhubaneswar in I.C.C. Case No.4445/2024
which corresponds to T.R. No.95 of 2025.
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 person 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 order, the Complainant-Appellant
has approached this Court by filing the present application under the
provision of Section 419(4) of the BNSS, 2023 seeking leave to
prefer an appeal.
5. In course of argument, learned counsel for the Appellant,
drawing attention to the judgment of the Hon'ble Supreme Court in
Celestium Financial vs. Gnanasekaran Etc., reported in (2025)
SCC Online SC 1320, contended that right of the Complainant to
prefer an appeal under the proviso to Section 372 of the Cr.P.C. has
been recognised by the Hon'ble Apex Court in the aforesaid
judgment. In such view of the matter, learned counsel for the
Appellant contended that the Appellant be permitted to prefer an
appeal under the proviso to Section 413 of B.N.S.S., 2023 (i.e.
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 the Cr.P.C.
Accordingly, the right of the Complainant to prefer an appeal under
the proviso to Section 372 of the Cr.P.C. 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 413 of BNSS, 2023 (i.e. erstwhile Section 372 of
the Cr.P.C.) before the Appellate Court instead of seeking leave of
this Court under Section 419(4) of the BNSS, 2023.
8. Considering such submissions made by learned counsels
appearing for both sides, keeping in view the law laid down by the
Hon'ble Supreme Court in Celestium Financial's case (supra), this
Court disposes of the present Criminal Appeal praying for leave to
appeal by granting liberty to the Appellant to prefer an appeal under
the proviso to Section 413 of BNSS, 2023 within a period of four
weeks from today along with an application for condonation of
delay. In such eventuality, the learned Appellate Court shall consider
the application for condonation of delay by taking a lenient view.
( A.K. Mohapatra )
Judge
Debasis
