Chattisgarh High Court
Kamlesh Singh Rajput vs Ramjas Kaushik on 10 July, 2025
1
Digitally
signed by
AKHILESH
AKHILESH BEOHAR
BEOHAR Date:
2025.07.10
17:08:40
+0530
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
ACQA No. 239 of 2018
1 - Kamlesh Singh Rajput, S/o Shri B. N. Rajput, aged about 37 Years, R/o Bypass
Road Kawardha, Thana and Tahsil Kawardha, Civil and Revenue District
Kabeerdham Chhattisgarh.
... Appellant
versus
1 - Ramjas Kaushik, S/o Shri Dukhuram Kaushik, aged about 43 Years, R/o Village
Dhanelidih, Thana and Tahsil Sahaspur Lohara, Civil and Revenue District
Kabeerdham Chhattisgarh.
... Respondent
For Appellant : Mr. Samir Singh, Advocate.
For Respondent : Mr. Kanhiya Ram Yadav, Advocate on behalf of Mr.
Dharmesh Shrivastava, Advocate.
Hon'ble Shri Justice Radhakishan Agrawal
Judgment on Board
10.07.2025
1. This is an acquittal appeal filed under section 378 (4) of Cr.P.C. by the
complainant against the judgment dated 10.05.2018 passed by the
Judicial Magistrate First Class, Kawardha, District Kabirdham, C.G. in
Criminal Complaint Case No. 68 of 2015 whereby the learned Trial
Court acquitted the respondent/accused of the charge under Section
138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as
the “Act of 1881”). Along with this appeal, an application under section
378(4) of the Cr.P.C. for grant of leave to appeal against the impugned
judgment was also filed and the said application was allowed by this
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Court on 28.06.2018.
2. Learned counsel for the appellant/complainant submits that though
leave to appeal under Section 378(4) of the Cr.P.C. has been granted
by this Court, but recently the Supreme Court in the matter of M/s.
Celestium Financial Vs. A. Gnanasekaran Etc. reported in 2025
INSC 804 held 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 (hereinafter referred to as 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 the 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
3an 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 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
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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 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
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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.
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
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under Section 138 of the Act is conspicuous by its absence. This
is because the complaint filed under that provision 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.
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 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
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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 parties and perused the documents on
record.
7. Considering the submissions made herein above and also in the light of
judgment laid down by the Supreme Court referred to above, this Court
is inclined to permit the appellant to withdraw this appeal by granting
him liberty to prefer the appeal against the impugned judgment dated
10.05.2018 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 prescribed by this Court, it would not insist upon
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the limitation while deciding the same and will proceed to decide the
same in accordance with law.
8. In that view of the matter, Registry is directed to return the certified copy
of the impugned judgment after obtaining the attested photocopy of the
same.
9. The record of the case be sent back to the concerned J.M.F.C.
forthwith.
10. In view of the above, the present appeal stands disposed of.
Sd/-
(Radhakishan Agrawal)
JUDGE
Akhilesh
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