Chattisgarh High Court
Monalisa Agrawal vs Niranjan Meher on 27 June, 2025
1
Digitally
NAFR
signed by
PRAKASH
PRAKASH KUMAR
KUMAR Date:
2025.06.27 HIGH COURT OF CHHATTISGARH AT BILASPUR
17:32:50
+0530
ACQA No. 446 of 2018
Monalisa Agrawal W/o Shri Ajay Agrawal, Aged About 35 Years, Proprietor Mahalaxmi
Trectors R/o Danipara, Raigarh, Tahsil and District Raigarh, Chhattisgarh Through
General Power of Attorney - Brijmohan Agrawal, S/o Late Kalichran Agrawal, aged 61
Years, R/o Danipara Raigarh, Tahsil and District Raigarh, Chhattisgarh.
... Appellant
versus
Niranjan Meher S/o Late Shri Damru Meher, Aged About 45 Years, R/o Baddhara
Tahsil - Lakhanpur, District Jharsuguda Odisha.
... Respondent
For Appellant : Mr. Sarfaraz Khan, Advocate
For Respondent : Mr. Arvind Shrivastava, Advocate
Hon'ble Shri Justice Radhakishan Agrawal
Judgment on Board
27/06/2025
1. This is an acquittal appeal filed under section 378 (4) of Cr.P.C. by the
complainant against the judgment dated 02.08.2018 passed by the Judicial
Magistrate First Class, Raigarh, District – Raigarh (C.G.) in Criminal Complaint
Case No. 213/2011 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 Court on 14.11.2018.
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.
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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 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 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,
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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 convicted of a crime has the right to prefer an
appeal under Section 374 as a matter of right and not being
5subjected 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.
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
6cheque 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
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
7further 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 02.08.2018 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 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/-d/- /–
(Radhakishan Agrawal)
Judge
Prakash/Akhilesh