Chattisgarh High Court
Manjeet Singh Badesha vs Rakesh Kumar Thakur on 14 July, 2025
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NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
ACQA No. 490 of 2019
1 - Manjeet Singh Badesha S/o Late Surjan Singh Aged About 65 Years R/o In- Front Of
Police Station- Farasgaon, District- Kondagaon, Chhattisgarh.
... Appellant
versus
1 - Rakesh Kumar Thakur S/o Late Bisahuram Thakur Aged About 47 Years R/o H.I.J. 1/22,
Aditya Nagae, Durg, Police Station- Mohan Nagar, Durg, District- Durg, Chhattisgarh.
... Respondent(s)
For Appellant : Mr. Shobhit Koshta, Adv
For Respondent(s) : Mr. Praveen Dhurandhan, Adv
(Hon'ble Shri Justice Sachin Singh Rajput)
Judgment on Board
14/07/2025
1. This appeal under section 378 (4) of Cr.P.C. has been filed against the judgment dated
16.03.2018 passed by the J.M.F.C., Kondagaon District – Kondagaon (C.G.) in criminal
case no. 30/2013 acquitting the respondent/accused of the charge 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
28.06.2019.
2. Learned counsel for the appellant submits that though leave to appeal under section
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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 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
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.
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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 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
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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 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
5convicted 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 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.
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
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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 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.
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5. Learned counsel for the respondent submits that in case the 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. 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 inclined to permit the appellant to
withdraw this appeal by granting him liberty to prefer the appeal against the impugned
judgment dated 16.03.2018 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 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/- Sd/-
(Sachin Singh Rajput)
PARUL
MITTAL Judge
Digitally signed by
PARUL MITTAL
Date: 2025.07.15
15:06:04 +0530
Parul