Chattisgarh High Court
Neelam Sahu vs Narad Nagwanshi on 16 July, 2025
1
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
ACQA No. 340 of 2018
Neelam Sahu S/o Late Bhuwneshwar Singh Sahu Aged About 60 Years R/o Village
Digitally
Pandardalli, Rajrah, P. S. Rajrah, District Balod Chhattisgarh, ---Appellant
signed by
ANJANI
KUMAR
Versus
ALLENA
Date:
2025.07.16 Narad Nagwanshi S/o Sunnaram Nagwanshi Aged About 58 Years R/o House No.
17:20:30
44, 3 R. D. Batalian, Police, Near M. T. Workshop, Amleshwar Road, Raipur P. S.
+0530
Mahadev Ghat District Raipur Chhattisgarh. --- Respondent/Accused
For Appellant : Shri Prasoon Agrawal, Advocate
For Respondent : None, though served.
(HON'BLE SHRI JUSTICE RADHAKISHAN AGRAWAL)
Judgment on Board
16/07/2025
1. This is acquittal appeal filed under section 378 (4) of Cr.P.C. by the
complainant against the common judgment dated 23.07.2018 passed by the
Judicial Magistrate First Class, Dallirajhara, Dist Balod (C.G.) in Criminal
Complaint Case 28/2017 whereby the learned Trial Court acquitted the
respondent/accused Narad Nagwanshi of the charge under Section 138 of
the Negotiable Instruments Act, 1881 (hereinafter referred to as the “Act of
1881”). Along with appeals, 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 28.08.2018 in the
aforesaid Acquittal Appeal.
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 on
28.08.2018, but recently the Supreme Court in the matter of M/s. Celestium
2
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 xxx
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
he 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
3
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,
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
4
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
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
5includes 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 cheque which
has been dishonoured, in terms of the proviso to Section 372 of the
6CrPC, 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 this case also the appellant may be permitted to withdraw
this appeal with liberty to prefer an appeal before the concerned Session
Judge under proviso to Section 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. None appeared for the respondent though served.
7
6. Heard learned counsel for the appellant 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 23.07.2018 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
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/-
(Radhakishan Agrawal)
JUDGE
Anjani