Chattisgarh High Court
Ghulam Jilani vs Balram Singh Chawda on 24 July, 2025
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2025:CGHC:35987
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
ACQA No. 175 of 2024
Ghulam Jilani S/o Haji Umar Bhai Aged About 56 Years R/o Near Kalibadi
School, Vrindavan Colony, Jagdalpur, District - Bastar(Jagdalpur),
Chhattisgarh (Complainant)
... appellant
versus
Balram Singh Chawda S/o Hiralal Chawda Aged About 50 Years R/o Vill.
Prachanpal, Main Road, Mongdapal Marg, P.O. Mongdapal, P.S. Kotwali,
Police Out Post Bastar, District - Bastar(Jagdalpur), Chhattisgarh
... Respondent
For appellant : Ms. Ashwani Goverdhan, Advocate
For Respondent : Mr. Vikash A. Shrivatava, Advocate
Hon’ble Shri Justice Sachin Singh Rajput
Judgment on Board
24/07/2025
This appeal under section 378 (4) of Cr.P.C. has been filed against the
judgment dated 20.12.2023 passed by the J.M.F.C., Jagdalpur, District-
Bastar, CG in Criminal Complaint Case No. 48 of 2019 (Ghulam Jilani Vs.
Balram Singh Chawda), acquitting the respondent/accused of the charge
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under section 138 of the Negotiable Instrument Act, 1881 (for short the “Act of
1881”). Appeal was filed along-with an application under section 378(4) of the
Cr.P.C. for grant of leave to appeal against the impugned judgment. The said
application was allowed by this Court on 02.04.2024.
2. Learned counsel for the appellant submits that the complaint case filed
by the appellant was dismissed for want of prosecution resulting into the
acquittal of the respondent. He submits that though leave to appeal under
section 378(4) of the Cr.P.C. has been granted by this Court, recently the
Supreme Court has delivered a judgment in the matter of M/s. Celestium
Financial Vs. A. Gnanasekaran Etc. reported in 2025 INSC 804 holding that
the complainant in a complaint filed under section 138 of the Act of 1881 is
also a victim as defined in section 2(wa) of Cr.P.C. corresponding to Section
2(y) of Bhartiya Nagarik Suraksha Sanhita, 2023 (for short the “BNSS”). He
submits that the Supreme Court has further held that the complainant in a
complaint under section 138 of the Act of 1881 can also be entitled to file an
appeal under proviso to section 372 Cr.P.C. corresponding to Section 413 of
the BNSS.
3. Relevant portion of the aforesaid judgment is reproduced as under:-
7. xxx xxx xxx
7.1 xxx xxx xxx
7.2 xxx xxx xxx
7.3 xxx xxx xxx
7.4 xxx xxx xxx
7.5 xxx xxx xxx
7.6 xxx xxx xxx7.7 In the context of offences under the Act, particularly
under Section 138 of the said Act, the complainant is clearly
the aggrieved party who has suffered economic loss and
injury due to the default in payment by the accused owing to
3the dishonour of the cheque which is deemed to be an
offence under that provision. In such circumstances, it would
be just, reasonable and in consonance with the spirit of the
CrPC to hold that the complainant under the Act also qualifies
as a victim within the meaning of Section 2(wa) of the CrPC.
Consequently, such a complainant ought to be extended the
benefit of the proviso to Section 372, thereby enabling him to
maintain an appeal against an order of acquittal in his own
right withouthe cheque which is deemed to be an offence
under that provision. In such circumstances, it would be just,
reasonable and in consonance with the spirit of the CrPC to
hold that the complainant under the Act also qualifies as a
victim within the meaning of Section 2(wa) of the CrPC.
Consequently, such a complainant ought to be extended the
benefit of the proviso to Section 372, thereby enabling him to
maintain an appeal against an order of acquittal in his own
right without having to seek special leave under Section
378(4) of the CrPC.t having to seek special leave under
Section 378(4) of the CrPC.
7.8 In the case of an offence alleged against an accused
under Section 138 of the Act, we are of the view that the
complainant is indeed the victim owing to the alleged
dishonour of a cheque. In the circumstances, the complainant
can proceed as per the proviso to Section 372 of the CrPC
and he may exercise such an option and he need not then
elect to proceed under Section 378 of the CrPC.
7.9 In this context, we wish to state that the proviso to
Section 372 does not make a distinction between an accused
who is charged of an offence under the penal law or a person
who is deemed to have committed an offence under Section
138 of the Act. Symmetrical to a victim of an offence, a victim
of a deemed offence. under Section 138 of the Act also has
the right to prefer an appeal against any order passed by the
court acquitting the accused or convicting for a lesser
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offence or imposing an inadequate compensation. When
viewed from the perspective of an offence under any penal
law or a deemed offence under Section 138 of the Act, the
right to file an appeal is not circumscribed by any condition
as such, so long as the appeal can be premised in
accordance with proviso to Section 372 which is the right to
file an appeal by a victim, provided the circumstances which
enable such a victim to file an appeal are met. The
complainant under Section 138 is the victim who must also
have the right to prefer an appeal under the said provision.
Merely because the proceeding under Section 138 of the Act
commences with the filing of a complaint under Section 200
of the CrPC by a complainant, he does not cease to be a
victim inasmuch as it is only a victim of a dishonour of cheque
who can file a complaint. Thus, under Section 138 of the Act
both the complainant as well as the victim are one and the
same person.
7.10 Section 378 of the CrPC is a specific provision dealing
with appeals. Sub-section (3) of Section 378 states that no
appeal to the High Court under sub-section (1) or sub-
section (2) shall be entertained except with the leave of the
Court, with which we are not concerned in the instant case.
However, sub-section (4) of Section 378 is pertinent. It states
that if an order of acquittal is passed in any case instituted
upon a complaint and the High Court, on an application made
to it by the complainant in that behalf, grants special leave to
appeal from the order of acquittal, the complainant may
present such an appeal to the High Court. The limitation
period for seeking special leave to appeal is six months
where the complainant is a public servant and sixty days in
every other case, computed from the date of the order of
acquittal. Sub-Section (6) states that if, in any case, the
application under sub-section (4) for grant of special leave to
appeal from an order of acquittal is refused, no appeal from
that order of acquittal shall lie under sub-section (1) or under
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sub-section (2) of Section 378.
7.11 A reading of section 378 would clearly indicate that in
case the complainant intends to file an appeal against the
order of acquittal, his right is circumscribed by certain
conditions precedent. When an appeal is to be preferred by a
complainant, the first question is, whether, the complainant is
also the victim or only an informant. If the complainant is not
a victim and the case is instituted upon a complaint, then
sub-section (4) requires that the complainant must seek
special leave to appeal from an order of acquittal from the
High Court. As noted under sub-section (6), if the application
under sub-section (4) for grant of special leave to appeal
from the order of acquittal is refused, no appeal from that
order of acquittal would lie, inter alia, under sub-section (1) of
Section 378. However, if the complainant is also a victim, he
could proceed under the proviso to Section 372, in which
case the rigour of sub-section (4) of Section 378, which
mandates obtaining special leave to appeal, would not arise
at all, as he can prefer an appeal as a victim and as a matter
of right. Thus, if a victim who is a complainant, proceeds
under Section 378, the necessity of seeking special leave to
appeal would arise but if a victim whether he is a
complainant or not, files an appeal in terms of proviso to
Section 372, then the mandate of seeking special leave to
appeal would not arise.
7.12 The reasons for the above distinction are not far to see
and can be elaborated as follows:
Firstly, the victim of a crime must have an
absolute right to prefer an appeal which cannot be
circumscribed by any condition precedent. In the instant
case, a victim under Section 138 of the Act, i.e., a payee or
the holder of a cheque is a person who has suffered the
impact of the offence committed by a person who is charged
of the offence, namely, the accused, whose cheque has been
dishonoured.
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Secondly, the right of a victim of a crime must be
placed on par with the right of an accused who has suffered
a conviction, who, as a matter of right can prefer an appeal
under Section 374 of the CrPC. A person convicted of a crime
has the right to prefer an appeal under Section 374 as a
matter of right and not being subjected to any conditions.
Similarly, a victim of a crime, whatever be the nature of the
crime, unconditionally must have a right to prefer an appeal.
Thirdly, it is for this reason that the Parliament thought
it fit to insert the proviso to sub-section 372 without
mandating any condition precedent to be fulfilled by the victim
of an offence, which expression also includes the legal
representatives of a deceased victim who can prefer an
appeal.
On the contrary, as against an order of acquittal, the
State, through the Public Prosecutor can prefer an appeal
even if the complainant does not prefer such an appeal,
though of course such an appeal is with the leave of the
court. However, it is not always necessary for the State or a
complainant to prefer an appeal. But when it comes to a
victim’s right to prefer an appeal, the insistence on seeking
special leave to appeal from the High Court under Section
378(4) of the CrPC would be contrary to what has been
intended by the Parliament by insertion of the proviso to
Section 372 of the CrPC.
Fourthly, the Parliament has not amended
Section 378 to circumscribe the victim’s right to prefer an
appeal just as it has with regard to a complainant or the
State filing an appeal. On the other hand, the Parliament has
inserted the proviso to Section 372 so as to envisage a
superior right for the victim of an offence to prefer an appeal
on the grounds mentioned therein as compared to a
complainant.
Fifthly, the involvement of the State in respect of
an offence under Section 138 of the Act is conspicuous by its
absence. This is because the complaint filed under that
7provision is in the nature of a private complaint as per Section
200 of the CrPC and Section 143 of the Act by an express
intention incorporates the provisions of the CrPC in the
matter of trial of such a deemed offence tried as a criminal
offence. Therefore, the complainant, who is the victim of a
dishonour of cheque must be construed to be victim in terms
of the proviso to Section 372 read with the definition of victim
under Section 2(wa) of the CrPC.
8. xxx xxx xxx
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
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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.”
4. Learned counsel for the appellant submits that the Supreme Court in
the aforesaid case has reserved the liberty in favour of the petitioner therein
to prefer an appeal in the light of the provisions of Section 372 of the Cr.P.C,
and therefore in the case also the appellant may be permitted to withdraw
this appeal with liberty to prefer an appeal before the concerned Session
Judge under Section proviso to 372 Cr.P.C. corresponding to Section 413 of
BNSS. He further submits that the limitation may not come in the way while
deciding the appeal on its own merits.
5. Learned counsel for the respondent submits that in case an appeal is
filed, the respondent will not insist upon the limitation.
6. Heard learned counsel for the appellant and perused the documents on
record.
7. In the light of the submissions made above and also keeping in view
the law laid down by the Supreme Court referred to above, this Court is
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inclined to permit the appellant to withdraw this appeal by granting him liberty
to prefer the appeal against the impugned judgment dated 20.12.2023 before
the concerned Sessions Judge within a period of 60 days from the date of
receipt of copy of this order. Order accordingly. It is clarified that if such an
appeal is filed before the concerned Session Judge within the time given by
this Court, it would not insist upon the limitation while deciding the same and
will proceed to decide the same in accordance with law.
8. At this stage, learned counsel for the appellant submits that the
certified copy of the impugned judgment may be directed to be returned by
the Registry by accepting the attested photo copy of the same. This request
is granted and the Registry is directed to do needful accordingly.
9. The record of the case may be sent back to the concerned J.M.F.C.
forthwith.
10. Appeal thus disposed of.
Sd/-
(Sachin Singh Rajput)
JUDGE
amita
AMITA Digitally signed by AMITA
DUBEY
DUBEY Date: 2025.07.31 17:00:03
+0530