Chattisgarh High Court
Pramod Agrawal vs Vinay Dixit on 22 July, 2025
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2025:CGHC:35178
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
ACQA No. 737 of 2024
Pramod Agrawal S/o. Mr. Shankar Lal Agrawal Aged About 58 Years R/o. Plot No.
41/5, Maitri Kunj, Risali, Bhilai, Police Station - Newai, District - Durg
... appellant
versus
Vinay Dixit S/o. Dr. Mahesh Chandra Dixit Aged About 49 Years R/o. Global
Industrial Traders, Shop No. 77, Alankar Complex, Camp-1, Power House, Bhilai,
District - Durg (Old Address) Presently R/o. At Sirsa Road, Kohka, Bhilai, District -
Durg (C.G.)
... Respondent
For appellant : Mr. Harshwardhan Agrawal, Advocate
For Respondent : None appeared though served
Hon’ble Shri Justice Sachin Singh Rajput
Judgment on Board
22/07/2025
This appeal under section 378 (4) of Cr.P.C. has been filed against the
judgment dated 19.07.2023 passed by the learned Judicial Magistrate First Class,
Durg, District- Durg (CG) in Complaint Case No. 29072 of 2012 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
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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 31.07.2024.
2. Learned counsel for the appellant submits that though leave to appeal under
section 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
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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 complainant as well as
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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
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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 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
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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 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
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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.
6. Heard learned counsel for the appellant 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 19.07.2023 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.
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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 Judicial
Magistrate First Class forthwith.
10. Appeal thus disposed of.
Sd/-
(Sachin Singh Rajput)
JUDGE
amita
AMITA Digitally signed by AMITA DUBEY
DUBEY Date: 2025.07.25 11:21:20 +0530