Vivek Radhakisan Agrawal v. The State of Maharashtra and Another

Order 01-12-20251IN THE HIGH COURT OF JUDICATURE AT BOMBAYNAGPUR BENCH, NAGPUR.CRIMINAL APPEAL NO. 418/2013 ( Vivek Radhakisan Agrawal VS The State of Maharashtra and Another) , WITHCRIMINAL APPEAL NO. 189/2014 ( M/s Sai Auto Agencies VS Kailash S/o Jago Kaikade and Another) , WITHCRIMINAL APPEAL NO. 459/2018 ( Manoharlal S/o Madanlal Basantwani VS Vinod s/o Laxmichand Jethani) , WITHCRIMINAL APPEAL NO. 02/2018 ( Manoharlal S/o Madanlal Basantwani VS Premkumar s/o Laxmichand Jethani) , WITHCRIMINAL APPEAL NO. 458/2018 ( Manoharlal S/o Madanlal Basantwani VS Harish s/o Laxmichand Jethani) , ____________________________________________________________________________________________Office notes, Office Memoranda ofCoram, appearances, Court's orders Court’s or Judge’s Ordersor directions and Registrar’s orders. Common Order. CORAM : M.M. NERLIKAR, J. DATE : DECEMBER 01, 2025. The principal challenge in all these matters pertains to acquittalin cases under Section 138 of the Negotiable Instruments Act. TheseApplications/Appeals are filed under Section 378 of the Code ofCriminal Procedure. In some matters, applications are being filedeither seeking condonation of delay in preferring the appeal or leaveto file appeal.2.Now so far as the issue in respect of preferring Appeal underSection 372 of the Code by the complainant/victim is concerned, thePIYUSH MAHAJAN Order 01-12-20252same was considered by the Hon’ble Supreme Court in case of M/s.Celestium Financial .Vrs. A. Gnanasekaran Etc (2025 SCC Online SC1320), wherein the Supreme Court has held as under :7.7 In the context of offences under the Act, particularlyunder Section 138 of the said Act, the complainant is clearlythe aggrieved party who has suffered economic loss andinjury due to the default in payment by the accused owingto the dishonour of the cheque which is deemed to be anoffence under that provision. In such circumstances, itwould be just, reasonable and in consonance with the spiritof the CrPC to hold that the complainant under the Act alsoqualifies as a victim within the meaning of Section 2(wa) ofthe CrPC. Consequently, such a complainant ought to beextended the benefit of the proviso to Section 372, therebyenabling him to maintain an appeal against an order ofacquittal in his own right without having to seek specialleave under Section 378(4) of the CrPC.7.8 In the case of an offence alleged against an accusedunder Section 138 of the Act, we are of the view that thecomplainant is indeed the victim owing to the allegeddishonour of a cheque. In the circumstances, thecomplainant can proceed as per the proviso to Section 372of the CrPC and he may exercise such an option and heneed not then elect to proceed under Section 378 of theCrPC.7.9 In this context, we wish to state that the proviso toSection 372 does not make a distinction between anaccused who is charged of an offence under the penal law ora person who is deemed to have committed an offenceunder Section 138 of the Act. Symmetrical to a victim of anoffence, a victim of a deemed offence under Section 138 ofPIYUSH MAHAJAN Order 01-12-20253the Act also has the right to prefer an appeal against anyorder passed by the court acquitting the accused orconvicting for a lesser offence or imposing an inadequatecompensation. When viewed from the perspective of anoffence under any penal law or a deemed offence underSection 138 of the Act, the right to file an appeal is notcircumscribed by any condition as such, so long as theappeal can be premised in accordance with proviso toSection 372 which is the right to file an appeal by a victim, provided the circumstances which enable such a victim tofile an appeal are met. The complainant under Section 138is the victim who must also have the right to prefer anappeal under the said provision. Merely because theproceeding under Section 138 of the Act commences withthe filing of a complaint under Section 200 of the CrPC bya complainant, he does not cease to be a victim inasmuch asit is only a victim of a dishonour of cheque who can file acomplaint. Thus, under Section 138 of the Act both thecomplainant as well as the victim are one and the sameperson.…..…..8. The right to prefer an appeal is no doubt a statutoryright and the right to prefer an appeal by an accused againsta conviction is not merely a statutory right but can also beconstrued to be a fundamental right under Articles 14 and21 of the Constitution. If that is so, then the right of avictim of an offence to prefer an appeal cannot be equatedwith the right of the State or the complainant to prefer anappeal. Hence, the statutory rigours for filing of an appealby the State or by a complainant against an order ofacquittal cannot be read into the proviso to Section 372 ofthe CrPC so as to restrict the right of a victim to file anappeal on the grounds mentioned therein, when noneexists.PIYUSH MAHAJAN Order 01-12-202549. 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, the person who is entitled to the proceeds of a cheque whichhas been dishonoured, in terms of the proviso to Section372 of the CrPC, as a victim. As already noted, a victim ofan offence could also be a complainant. In such a case, anappeal can be preferred either under the proviso to Section372 or under Section 378 by such a victim. In the absenceof the proviso to Section 372, a victim of an offence couldnot have filed an appeal as such, unless he was also acomplainant, in which event he could maintain an appeal ifspecial leave to appeal had been granted by the High Courtand if no such special leave was granted then his appealwould not be maintainable at all. On the other hand, if thevictim of an offence, who may or may not be thecomplainant, proceeds under the proviso to Section 372 ofthe CrPC, then in our view, such a victim need not seekspecial leave to appeal from the High Court. In other words, the victim of an offence would have the right to prefer anappeal, inter alia, against an order of acquittal in terms ofthe proviso to Section 372 without seeking any special leaveto appeal from the High Court only on the groundsmentioned therein. A person who is a complainant underSection 200 of the CrPC who complains about the offencecommitted by a person who is charged as an accused underSection 138 of the Act, thus has 51 the right to prefer anappeal as a victim under the proviso to Section 372 of theCrPC.10. As already noted, the proviso to Section 372 of theCrPC was inserted in the statute book only with effect fromPIYUSH MAHAJAN Order 01-12-2025531.12.2009. The object and reason for such insertion mustbe realised and must be given its full effect to by a court. Inview of the aforesaid discussion, we hold that the victim ofan offence has the right to prefer an appeal under theproviso to Section 372 of the CrPC, irrespective of whetherhe is a complainant or not. Even if the victim of an offenceis a complainant, he can still proceed under the proviso toSection 372 and need not advert to sub-section (4) ofSection 378 of the CrPC.”3.Considering the above position of law as laid down by theSupreme Court, the learned Counsel appearing in the matter forapplicants/appellants submitted that under proviso to Section 372 ofthe Code of Criminal Procedure, since the victim has a right to preferan appeal against the order passed by the Court acquitting the accusedor convicting accused for lesser offence or imposing inadequatecompensation, such appeal shall lie to the Court to which the appealordinarily lies against the order of conviction. In view of said proviso, the learned Counsel prays that the matters be transferred to theconcerned District and Sessions Court for its disposal in accordancewith law.4.In this view of the matter and considering the observations ofthe Supreme Court referred above, all the matters (applications andappeals) are required to be transferred for their disposal to the concernPIYUSH MAHAJAN Order 01-12-20256District Court, hence the following order.O R D E R(1)The Applications/Appeals are transferred to theconcerned District and Sessions Court, who shall afterregistering the matters, deal with the matter in accordancewith law.(2)Parties shall appear before the concerned District andSessions Court, on 09/01/2026.(3)If the non-applicants/respondents in any of these mattersare not served or they are to be served, in that case theconcerned District and Sessions Court shall issue noticeto them and thereafter proceed further with the matter.(4)The concerned District and Sessions Court are alsodirected to take into consideration the matters whereinthis Court has appointed Advocate from Legal Aid Panel, and if the said Advocate from the Legal Aid Panel isunable to attend or appear before the Court where thematter is transferred, in that eventuality, the DistrictCourt shall take necessary steps for appointing anotherAdvocate from the Legal Aid panel for defending thenon-applicants/ respondents.(5)In case either of the parties remains absent after transferof the matter to the District and Sessions Court, theconcerned Court / Judge shall issue notice to theconcerned party/ies before proceeding with the matter.(6)All the concerned District and Sessions Court shall treatPIYUSH MAHAJAN Order 01-12-20257these matters as appeal under proviso to Section 372 ofthe Code as per the observations of the Supreme Court incase of Celestium Financial (supra).(7) Registrar (Judicial) of this Court to take further necessaryaction for transferring these matters to the concernedDistrict and Sessions Court immediately. JUDGEPIYUSH MAHAJAN