Bombaybench High Court
Case Details
*1* Sr. Nos.954 to 963 & 968IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD954 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 13 OF 2020SHANKAR S/O. RANJIT HAKALEVERSUSVILAS S/O. KHANDOBA UGALE...Mr. Dnyaneshwar B. Pokale, Advocate for Appellant.Mr. L. H. Kawale h/f. Mr. K. J. Suryawanshi, Advocate forRespondent. …AND955 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 22 OF 2020MAHARU TANGA PATILVERSUSSHANTILAL @ SHANTARAM BABURAO DESALE…None for the Applicant. …AND956 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 23 OF 2020POPATRAO S/O. EKNATH PALVEVERSUSSANTOSH S/O. KACHARU SALUNKE AND ANR...None for the Applicant.…AND957 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 24 OF 2020VISHNU S/O. ASARAM PANHALEVERSUSSATISH ASHOK SUKASE...Mr. Sandipan N. Morampalle, Advocate for Appellant.…
Legal Reasoning
*2* Sr. Nos.954 to 963 & 968AND958 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 31 OF 2020GORAKHNATH S/O. KAUTIK JANJALVERSUSRAHUL S/O. KISAN CHATSI...Mr. Shrinivas A. Ambad, Advocate for Appellant.…AND959 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 36 OF 2020SHAMBHUDEV WAMANRAO RAJBHOJVERSUSSAYYAD SALIM SAYYAD RASHID...None for the Applicant. …AND960 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 38 OF 2020ASHOK S/O. BHAURAO WAGHVERSUSBHASKAR RAOSAHEB ADHANE...Ms. Sarita Rathod h/f. Mr. Nitin T. Tribhuwan, Advocate forAppellant.…AND961 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 40 OF 2020SAMRUDDHI TRADERS MAJALGAON THROUGH PROPRIETORSUYOG S/O. SANJAY REDASANIVERSUSSUDHAKAR S/O. ZUGRAJI UFADE...Mr. Sudarshan J. Salunke, Advocate for Appellant.… *3* Sr. Nos.954 to 963 & 968AND962 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 44 OF 2020SANJAY S/O. NIVRUTTI HIPPARGEKARVERSUSDATTA S/O. ANKUSH DEVKATTE...Adv. Charuta Sunil Deshmukh, Advocate for Appellant.…AND963 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 45 OF 2020ANIL S/O. BABULAL KATARIYAVERSUSPRADEEPKUMAR POPATRAO THUBE AND ANR...Mr. Narayan B. Narwade, Advocate for Appellant.Mr. G. B. Chate, Advocate for Respondent No.1. …AND968 CRIMINAL APPEAL NO.349 OF 2006NARAYAN PATILBUWA BHAKREVERSUSSHAIKH SHAHABUDDIN SK ABBAS AND ANR...None for the Appellant.... CORAM : SUSHIL M. GHODESWAR, J. DATE : 14th OCTOBER 2025P. C. :-1.Since common issue is involved in these matters,therefore, they are being decided by this common order. *4* Sr. Nos.954 to 963 & 9682.By these applications under Section 378(4) of theCode of Criminal Procedure, the respective applicants/appellants pray for leave to file an appeal against judgment andorder of acquittal passed by respective learned JudicialMagistrates, First Class, in respective cases for the offencepunishable under Section 138 of the Negotiable InstrumentsAct, 1881.3.Insofar as the issue in respect of preferring anappeal under Section 372 of the Code of Criminal Procedure bythe complainant/victim is concerned, the same was consideredby the Honourable Supreme Court in the matter of CelestiumFinancial Vs. Ganasekaran Etc. [(2025) SCC OnLine SC 1320],wherein, it has been held as under :-“9. In the circumstances, we find that Section 138 of theAct being in the nature of a penal provision by a deemingfiction against an accused who is said to have committed anoffence under the said provision, if acquitted, can beproceeded against by a victim of the said offence, namely, theperson who is entitled to the proceeds of a cheque which hasbeen dishonoured, in terms of the proviso to Section 372 of theCrPC, as a victim. As already noted, a victim of an offencecould also be a complainant. In such a case, an appeal can bepreferred either under the proviso to Section 372 or underSection 378 by such a victim. In the absence of the proviso toSection 372, a victim of an offence could not have filed anappeal as such, unless he was also a complainant, in whichevent he could maintain an appeal if special leave to appeal *5* Sr. Nos.954 to 963 & 968had been granted by the High Court and if no such specialleave was granted then his appeal would not be maintainableat all. On the other hand, if the victim of an offence, who mayor may not be the complainant, proceeds under the proviso toSection 372 of the CrPC, then in our view, such a victim neednot seek special leave to appeal from the High Court. In otherwords, the victim of an offence would have the right to preferan appeal, inter alia, against an order of acquittal in terms ofthe proviso to Section 372 without seeking any special leave toappeal from the High Court only on the grounds mentionedtherein. A person who is a complainant under Section 200 ofthe CrPC who complains about the offence committed by aperson who is charged as an accused under Section 138 of theAct, thus has the right to prefer an appeal as a victim under theproviso to Section 372 of the CrPC.10.As already noted, the proviso to Section 372 of the CrPCwas inserted in the statute book only with effect from31.12.2009. The object and reason for such insertion must berealised and must be given its full effect to by a court. In viewof the aforesaid discussion, we hold that the victim of anoffence has the right to prefer an appeal under the proviso toSection 372 of the CrPC, irrespective of whether he is acomplainant or not. Even if the victim of an offence is acomplainant, he can still proceed under the proviso to Section372 and need not advert to sub-section (4) of Section 378 ofthe CrPC."4.Considering the above position of law as laid downby the Honourable Supreme Court, learned advocates appearingin the matter for the applicants/appellants submitted that underproviso to Section 372 of the Code of Criminal Procedure, sincethe victim has a right to prefer an appeal against the orderpassed by the Court acquitting the accused or convicting accusedfor lesser offence or imposing inadequate compensation, such *6* Sr. Nos.954 to 963 & 968appeal shall lie to the Court to which the appeal ordinarily liesagainst the order of conviction. In view of said proviso, learnedadvocates pray that these matters be transferred to theconcerned District and Sessions Courts for their disposal inaccordance with law.5.In that view of the matter and considering theobservations of the Honourable Supreme Court in CelestiumFinancial (supra), these matters are required to be transferredfor their disposal to the respective concerned District Courts.Hence, the following order :-ORDER(1)The present proceedings be transferred to theconcerned District and Sessions Courts.(2)Learned Registrar (Judicial) of this Court to takefurther necessary action for transferring these matters tothe concerned District and Sessions Courts, immediately.(3)Learned Courts to whom these matters would beassigned, after registering them, shall issue notice to theconcerned parties, and thereafter, proceed further with thematters in accordance with law. (4)The concerned Courts shall treat these matters as *7* Sr. Nos.954 to 963 & 968appeals under proviso to Section 372 of the Code ofCriminal Procedure as per the observations of theHonourable Supreme Court in Celestium Financial(supra). ( SUSHIL M. GHODESWAR, J. ) Tauseef