High Court
Legal Reasoning
*1* 931t946 138 NI Act groupIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD931 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO.79 OF 2024PRAKASH VITTHALRAO KAVTHEKARVERSUSGOVARDHAN DILIP AJABE...Shri Kakade Amarsinha Shankar, Advocate for the Appellant.Shri Sudarshan B. Jojar, Advocate h/f Shri S.E. Shekade,Advocate for respondent. ...AND933 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO.135 OF 2024ANANT SHIVRAJ DARADE (DIED) BY LEGAL HEIRSHIVRAJ BHAGWANRAO DARADEVERSUSSANTOSH ANILRAO RATHOD...Shri Bhimrao R. Rathod, Advocate h/f Shri Bhapkar ShivajiBhimrao, Advocate for the Appellant.Shri Dharurkar Chaitanya V., Advocate for the Respondent.…AND935 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO.48 OF 2020ANIL SHANKARRAO JADHAVVERSUSSHRAVAN KALLU YADAV AND ANR
Legal Reasoning
*2* 931t946 138 NI Act group...Shri Z.H. Farooqui, Advocate h/f Shri Gaware Niteen V.,Advocate for the Appellant.Shri Karpe Rahul R., Advocate for Respondent No.1.…AND936 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 9OF 2022RAMKRUSHNA GANGARAM BOBADEVERSUSSHIVAJI PRALHAD TANPURE...Shri Prasad D. Wakhare, Advocate h/f Shri Lavte AmarVinayakrao, Advocate for the Appellant.…AND937 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO.13 OF 2022AURANGABAD DISTRICT CO-OPERATIVE MILK PRO.UNI. LTD THROUGH, DR. PRADEEP BHAURAO PATILVERSUSPADMAKAR JAGANNATH PATIL...Shri Dhongade Amit S., Advocate for THE Appellant.…AND938 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO.19 OF 2022SHIVAJI GANPAT BADAR *3* 931t946 138 NI Act groupVERSUSNAGESH TRIMBAK GADHAVE...Shri More Abhijit S., Advocate for the Appellant.Shri Talekar Nagesh G., Advocate for the Respondent.…AND939 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO.20 OF 2022SHIVAJI DATTA GADHVEVERSUSMOMIN ABDUL JABBAR ABDUL JAVED...Shri Biradar R.D., Advocate for the Appellant.Shri Rodge Krishna P., Advocate for the Respondent.…AND940 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO.26 OF 2022DON BOSCO NAGARI SAHKARI PATSANTHA MARYADIT,THROUGH, SACHIN PRABHAKAR SALAVEVERSUSASHOK SHANKAR SHIRSATH...Shri Andhale Sandip Ramnath, Advocate for the Appellant.Shri Zambare Sudheer R. and Shri Gavhane Khanderao R.,Advocate for the Respondent.…AND941 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO.27 OF 2022 *4* 931t946 138 NI Act groupGORESHWAR GRAMIN BIGAR SHETI SAHAKARIPATSANSTHA MARYADIT GOREGAON, THROUGHJALINDAR JANAJI NARSALEVERSUSRAJENDRA CHANDRAKANT PACHARNE...Shri Anjanwatikar Vinay Bhalchandra, Advocate for theAppellant.…AND942 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO.28 OF 2022SHRI. VARDHAMAN SAHAKARI PATSANSTHA LTD.,THROUGH, KEDAR SADASHIV NERPAGARVERSUSRAJU BALIRAM MORE...Ms.Jakhade Rutuja L., Advocate for the Appellant.Shri Pandit Sushil P., Advocate for the Respondent.…AND943 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO.30 OF 2022SAMIR GANJUBHAI SHAIKHVERSUSGANESH SADASHIV KSHIRSAGAR AND ANOTHER...Advocate N.M. Jaju, Advocate h/f Shinde Bhagwat A., Advocatefor the Appellant.Advocate K.S. Sarin, Advocate h/f Shri Bora Satyajit S.,Advocate for the Respondents.…AND *5* 931t946 138 NI Act group944 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO.32 OF 2022SAMIR GANJUBHAI SHAIKHVERSUSGANESH SADASHIV KSHIRSAGAR AND ANOTHER...Advocate N.M. Jaju, Advocate h/f Shinde Bhagwat A., Advocatefor the Appellant.Advocate K.S. Sarin, Advocate h/f Shri Bora Satyajit S.,Advocate for the Respondents.…AND945 CRIMINAL APPEAL NO. 167 OF 2006SALIMSHAH HAJI SHAKURSHAN L.RS. SAYARABAISALIMSHAH AND ORSVERSUSSYD JAVDALI SYD ANWARALI AND ANR...Shri A. M. Gholap, Advocate for the Appellant.Shri N.R. Dayama, APP for the Respondents/State.Ms. Pooja Patil, Advocate h/f Shri P.R. Katneshwarkar, Advocatefor respondent No.1.…AND946 CRIMINAL APPEAL NO. 411 OF 2006THE STATE OF MAHARASHTRAVERSUSSUBHASH BHIKA PARDHI...Shri N.R. Dayama, APP for the Appellant/State.Shri Amol Chate, Advocate h/f Shri A.K. Tiwari, Advocate forthe Respondent.... CORAM : SUSHIL M. GHODESWAR, J. DATE : 15 October 2025 *6* 931t946 138 NI Act groupP. C. :-1.Since common issue is involved in these matters,therefore, they are being decided by this common order.2.By these applications under Section 378(4) of theCode of Criminal Procedure, the respective applicants/ appellantspray for leave to file an appeal against judgment and order ofacquittal passed by respective learned Judicial Magistrates, FirstClass, in respective cases for the offence punishable underSection 138 of the Negotiable Instruments Act, 1881.3.Insofar as the issue in respect of preferring an appealunder Section 372 of the Code of Criminal Procedure by thecomplainant/victim is concerned, the same was considered by theHonourable Supreme Court in the matter of Celestium FinancialVs. Ganasekaran Etc. [(2025) SCC OnLine SC 1320], wherein, ithas 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 committedan offence under the said provision, if acquitted, can beproceeded against by a victim of the said offence, namely,the person who is entitled to the proceeds of a cheque *7* 931t946 138 NI Act groupwhich has been dishonoured, in terms of the proviso toSection 372 of the CrPC, as a victim. As already noted, avictim of an offence could also be a complainant. In such acase, an appeal can be preferred either under the proviso toSection 372 or under Section 378 by such a victim. In theabsence of the proviso to Section 372, a victim of anoffence could not have filed an appeal as such, unless hewas also a complainant, in which event he could maintainan appeal if special leave to appeal had been granted bythe High Court and if no such special leave was grantedthen his appeal would not be maintainable at all. On theother hand, if the victim of an offence, who may or maynot be the complainant, proceeds under the proviso toSection 372 of the CrPC, then in our view, such a victimneed not seek special leave to appeal from the High Court.In other words, the victim of an offence would have theright to prefer an appeal, inter alia, against an order ofacquittal in terms of the proviso to Section 372 withoutseeking any special leave to appeal from the High Courtonly on the grounds mentioned therein. A person who is acomplainant under Section 200 of the CrPC whocomplains about the offence committed by a person who ischarged as an accused under Section 138 of the Act, thushas 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 theCrPC was inserted in the statute book only with effectfrom 31.12.2009. The object and reason for such insertionmust be realised and must be given its full effect to by acourt. In view of the aforesaid discussion, we hold that thevictim of an offence has the right to prefer an appeal underthe proviso to Section 372 of the CrPC, irrespective ofwhether he is a complainant or not. Even if the victim ofan offence is a complainant, he can still proceed under the *8* 931t946 138 NI Act groupproviso to Section 372 and need not advert to sub-section(4) of Section 378 of the 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 order passedby the Court acquitting the accused or convicting accused forlesser offence or imposing inadequate compensation, such appealshall lie to the Court to which the appeal ordinarily lies againstthe order of conviction. In view of said proviso, learnedadvocates pray that these matters be transferred to the concernedDistrict and Sessions Courts for their disposal in accordance withlaw.5.In that view of the matter and considering theobservations of the Honourable Supreme Court in CelestiumFinancial (supra), these matters are required to be transferred fortheir disposal to the respective concerned District Courts. Hence,the following order :- *9* 931t946 138 NI Act groupORDER(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 asappeals under proviso to Section 372 of the Code ofCriminal Procedure as per the observations of theHonourable Supreme Court in Celestium Financial (supra). kps ( SUSHIL M. GHODESWAR, J. )