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Delhi High Court – Orders
Kanhiya Lal Gautam vs Manoj Gautam & Anr on 26 August, 2025
Author: Manoj Kumar Ohri
Bench: Manoj Kumar Ohri
$~59, 60
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. 280/2019, CRL.M.A. 8307/2019 and
CRL.M.A. 29434/2023
KANHIYA LAL GAUTAM .....Petitioner
Through: Mr. A.K. Mishra and Ms. Kanchan
Shukla, Advocates.
versus
MANOJ GAUTAM & ANR .....Respondents
Through: Mr. Sandeep Verma Advocate
+ CRL.L.P. 595/2019, CRL.M.A. 39640/2019 and CRL.M.A.
29438/2023
KANHIYA LAL GAUTAM .....Petitioner
Through: Mr. A.K. Mishra and Ms. Kanchan
Shukla, Advocates.
versus
MANOJ GAUTAM & ORS. .....Respondents
Through: Mr. Sandeep Verma Advocate
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
ORDER
% 26.08.2025
1. The present petition has been filed under Section 378(4) Cr.P.C. by
the petitioner/complainant seeking leave to appeal against the judgement
dated 10.10.2018 passed by the learned JMFC (NI Act), South East District,
Saket Courts, New Delhi in the case bearing CC Nos.16/1/14 and 15/1/14
titled as “Kanhiya Lal Gautam v. Manoj Gautam & Ors.” , vide which the
respondents were acquitted of the offense under Section 138 NI Act.
2. The attention of this Court is drawn to the recent decision of the
Supreme Court in Celestium Financial vs A. Gnanasekaran etc, reported as
2025 SCC OnLine SC 1320 wherein, it has been held that the complainant
under Section 138 NI Act, who suffers financial loss and injury on account
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of the dishonour of cheque, would qualify as a victim within the meaning of
Section 2 (wa) Cr.P.C.
It was further held that such a complainant could maintain an appeal under
proviso to Section 372 CrPC in his own right, without complying with the
rigours of Section 378(4) CrPC. The relevant portion is extracted
hereunder:-
“7.7 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 an order of acquittal in his own right
without having to seek special leave under Section 378(4) of the
CrPC.
xxx
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 offenceunder 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, heThis is a digitally signed order.
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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.”
3. Normally, a complainant who seeks to challenge a judgement of
acquittal has to meet the rigours of Section 378(4) Cr.P.C. The aggrieved
complainant has to apply before the High Court for a special leave to appeal.
If the High Court grants it, the complainant can present such appeal before
the High Court.
4. However, if the complainant under the NI Act is also held to be a
„victim‟, then all the rights available to the victim by the Code would also be
extended to such complainant, including a separate right to appeal provided
under the proviso to Section 372 Cr.P.C. The proviso reads as follows:-
“Provided that the victim shall have a right to prefer an
appeal against any order passed by the Court acquitting the
accused or convicting for a lesser offence or imposing
inadequate compensation, and such appeal shall lie to the
Court to which an appeal ordinarily lies against the order of
conviction of such Court.”
A careful reading of the above proviso would show that the victim can
appeal from three types of orders- a) an order of acquittal, b) a conviction
for a lesser offence or c) imposing inadequate compensation. It also states
that such appeal shall lie to the court to which an appeal ordinarily lies
against the order of conviction of such court. Section 372 is a self-contained
and independent provision which is not to be read conjointly with any other
provision, including Section 378 Cr.P.C.
5. Effect of the proviso of Section 372 CrPC is twofold. Firstly, it
provides the victim an individual right to appeal against an order of acquittal
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which is distinct from the right provided to the complainant under Section
378(4) Cr.P.C as in this case, no special leave to appeal needs to be obtained
from the High Court. Secondly, it provides an additional forum of challenge
as in case of an appeal preferred by the victim under Section 372 CrPC, the
same lies before the Court to which an appeal ordinarily lies against the
order of conviction of such Court. Section 143 of the NI Act states that all
offences under Chapter XVII of the Act, including an offence under Section
138 shall be tried by a Judicial Magistrate of First Class or by a
Metropolitan Magistrate. An appeal against conviction, and thus an appeal
preferred by the victim, would lie before the Sessions Court.
6. In light of the Supreme Court’s recent clarification of the legal
position, it is now evident that the petitioner, being the complainant under
Section 138 of NI Act, is also entitled to file an appeal against the
impugned judgment of acquittal before the Sessions Court, since he is
considered to be a victim. If this Court were to proceed to hear and decide
the appeal at this stage, it could deprive the parties of an available forum i.e.,
this Court, for further challenge.
7. Co-ordinate Benches of this Court in Yogesh Kataria v. State (Govt of
NCT of Delhi) & Anr1, Abdul Malik v State (Govt of NCT of Delhi) &
Anr2, Promila Lekhi v. Safe Hands Chits Pvt. Ltd. & Anr3, Shri Ujjawal
Arora v. State and Ors4, taking note of the decision in Celestium
Financial(Supra), have allowed the withdrawal of leave petitions filed before
this Court with liberty to the petitioners/complainants to approach the
1
decided on 16.07.2025 in CRL.LP. 367/2025
2
decided on 22.07.2025 in CRL.LP. 378/2025
3
decided on 14.07.2025 in CRL.LP. 360/2025
4
decided on 15.07.2025 in CRL.LP./2025
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concerned Sessions Court.
8. Similarly, the High Court of Bombay in Gunjan w/o Alok
Khandelwal v. Parvaiz Hussain5, Dnyaneshwar Dinkar Badve v. The State
of Maharashtra & Anr6, the High Court of Karnataka in Sidagondappa vs
Shafi Ahammad7, Sri T H Lenkappa vs Sri Sanjay8, High Court of
Chattisgarh in Nemnath Yogi vs. Yashwant Chandravanshi9, Neelam Sahu
v. Narad Nagwanshi10, and Smt. Kirti Kurian v. Ajay Singh; the High Court
of Madhya Pradesh in Urmila Madrah v. Samarpan Jain11 and the High
Court of Gujarat in Baroda Cricket Association v. State of Gujarat & Anr12 ,
Gauhati High Court in Bhargab Kaushik v. Dilip Kumar Bhagabati13,
Allahabad High Court in Indian Farm Forestry Development Cooperative
Ltd v. Mangala Trading Company14 and Himachal Pradesh High Court in
Roshan Chauhan vs . Mohan Lal15 have also relied on Celestium Financial
(Supra) to relegate the parties to contest their case before the Sessions
Court.
9. In view of the above, learned counsel for the appellant, on
instructions, seeks leave to withdraw this petition, with liberty to approach
the concerned Sessions Court.
10. Learned counsel for the respondent, on instructions, states that he has
5
decided on 21.07.2025 in Criminal Application (APPA) No. 150/2023 in Criminal Appeal ST. No.
10465/2022
6
decided on 24.07.2025 in Criminal Writ Petition No. 793/2025
7
decided on 31.07.2025 in CRL.A No. 200021 of 2018
8
decided on 23.07.2025 in CRL.A No. 146 OF 2015
9
decided on 07.08.2025 in CRMP No. 579 of 2021
10
decided on 16.07.2025 in ACQA No. 340 of 2018
11
decided on 21.07.2025 in CRL.A. No. 11872 of 2022
12
decided on 17.06.2025 in R/CR.MA/3473/2025
13
decided on 04.08.2025 in Crl.L.P./34/2025
14
decided on 28.07.2025 in APPLICATION U/S 378 No. – 56 of 2025
15
decided on 21.07.2025 in Cr. MP(M) No. 1629 of 2025
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no objection to the aforesaid request.
11. Considering the above noted legal position, the present petition is
dismissed as withdrawn with the direction that the accompanying appeal be
transferred to the concerned Appellate Court of Sessions and be considered
as an appeal under the proviso to Section 413 of BNSS (formerly Section
372 of CrPC) and numbered accordingly.
12. The Registry is directed to transfer entire record of the case including
the requisitioned copies of TCR, to the concerned Principal District &
Sessions Judge, who may assign it to the concerned Appellate Court/ learned
ASJ having the jurisdiction and for which purpose, it would be listed before
the concerned Principal District & Sessions Judge, at the first instance, on
20.09.2025 for directions.
13. In case there are applications pending for Condonation of Delay, the
same be also transferred to be considered by the learned ASJ in accordance
with law.
14. Considering that the matter has been pending for considerable time,
learned Appellate Court is requested to make an endeavour to dispose the
matter as expeditiously as possible.
15. It is made clear that this Court has not made any observations as to the
merits of the case and all rights and contentions of the parties are left open to
be agitated before the Court concerned.
16. A copy of the order be sent to the concerned Principal District and
Sessions Judge for necessary information and compliance.
MANOJ KUMAR OHRI, J
AUGUST 26, 2025
na
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.
The Order is downloaded from the DHC Server on 29/08/2025 at 22:50:16
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