Chattisgarh High Court
Satishchandra Surana vs Sunil Kumar Kesarwani on 29 July, 2025
1
Digitally
signed by
NAFR
SAURABH
SAURABH YADAV
YADAV Date:
2025.07.29
16:58:34
+0530
HIGH COURT OF CHHATTISGARH AT BILASPUR
ACQA No. 39 of 2017
Satishchandra Surana S/o Suganchand Surana Aged About 48 Years
Proprietor - Suganchand Wrongly Mentioned As Kuganchand Satishchand
Surana, R/o Ganj Para, Durg, Tahsil And District Durg, Chhattisgarh.,
Chhattisgarh
... Appellant
Versus
Sunil Kumar Kesarwani S/o Tulsi Ram Kesarwani Aged About 40 Years R/o
Main Road, Post Office And Police Station Devkar, Tahsil Saja, District Durg,
Chhattisgarh., Chhattisgarh
... Respondent(s)
For Appellant : Mr. Ankur Agrawal, Advocate on behalf of
Mr. Ashish Surana, Advocate
For Respondent : Mr. Praveen Dhurandhar, Advocate
Hon’ble Shri Justice Radhakishan Agrawal
Judgment on Board
29.07.2025
1. This is an acquittal appeal filed under section 378 (4) of Cr.P.C. by the
complainant against the judgment dated 29.08.2008 passed by the
Judicial Magistrate First Class, Durg, (C.G.) in Complaint Case No.
880 of 2005 whereby the learned Trial Court acquitted the
2
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
14.02.2017.
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 14.02.2017, but recently the Supreme Court in the
matter of M/s. Celestium 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 xxx7.7 In the context of offences under the Act, particularly under
3Section 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.
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
4Section 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 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
5
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 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
6
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 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
7
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 further 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
8
on its own merits.
5. On the other hand, learned counsel for the respondent does not
oppose the submissions of the learned counsel for the appellant.
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 29.08.2008 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/-
(Radhakishan Agrawal)
JUDGE
Saurabh