The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLLP No.102 of 2009 Metro Co-operative Credit Society Ltd., Bhubaneswar. ..... Petitioner Sk. Kayum Mahammad -versus- ..... None Opposite Party None
Legal Reasoning
CORAM: THE HON’BLE MR. JUSTICE ADITYA KUMAR MOHAPATRA
Decision
ORDER 22.10.2025 Order No. 09. 1. This matter is taken up through Hybrid Arrangement (Virtual /Physical Mode). 2. No one appears on behalf of either party. Perused the application as well as the prayer made therein. 3. The present application has been filed under Section 378(4) of the Cr.P.C. by the Petitioner-Complainant against the judgment of acquittal dated 25.07.2009 passed by the learned J.M.F.C., Bhubaneswar in I.C.C. Case No.6186 of 2004 which corresponds to Trial No.166 of 2009. 4. The above noted I.C.C. case was registered on the basis of a complaint alleging commission of an offence punishable under Section 138 of the N.I. Act. During the trial the accused was summoned and he faced trial. Eventually, the learned trial court has delivered the judgment of acquittal against the Accused- Page 1 of 4. Opposite party. Being aggrieved by such judgment, the Petitioner-Complainant has approached this Court by filing the present application under the provision of Section 378(4) of the Cr.P.C. seeking leave to prefer an appeal. 5. While analysing the law regarding the right of a Complainant to prefer an appeal, the Hon’ble Supreme Court in Celestium Financial vs. Gnanasekaran Etc. reported in (2025) SCC Online SC 1320, has observed that the Complainant in a case under Section 138 of N.I. Act is a ‘victim’ and, as such, has the right to prefer an appeal under the proviso to Section 372 of the Cr.P.C. 6. On perusal of the judgment of the Hon’ble Supreme Court in Celestium Financial’s case (Supra), this Court observes that the Hon’ble Supreme Court has equated the Complainant with the victim as has been described in the proviso to Section 372 of Cr.P.C. Accordingly, the right of the Complainant to prefer an appeal under the proviso to Section 372 has been recognised by the Hon’ble Supreme Court and the Complainant was granted liberty to prefer an appeal against the judgment of acquittal under the proviso to Section 372 of the Cr.P.C. In the aforesaid context, it would be profitable to refer to the relevant portion of the judgment. Para-9 & Para-10 of the judgment are quoted herein below:- “In the circumstances, we find that Section 138 9. 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, Page 2 of 4. 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 Cr.P.C., 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 Cr.P.C., 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 Cr.P.C. 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 Cr.P.C. 10. As already noted, the proviso to Section 372 of the Cr.P.C. 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 Page 3 of 4. discussion, we hold that the victim of an offence has the right to prefer an appeal under the proviso to Section 372 of the Cr.P.C., 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 Cr.P.C.” 7. In view of the aforesaid conclusion of the Hon’ble Supreme Court in Celestium Financial’s case (supra), this Court is of the view that the Complainant can very well prefer an appeal under the proviso to Section 372 Cr.P.C. before the Appellate Court instead of seeking leave of this Court under Section 378(4) of the Cr.P.C. 8. Keeping in view the law laid down by the Hon’ble Supreme Court in Celestium Financial’s case (supra), this Court disposes of the leave application by granting liberty to the Petitioner to prefer an appeal under the proviso to Section 372 Cr.P.C. within a period of four weeks from today along with an application for condonation of delay. In such eventuality, the Appellate Court shall consider the application for condonation of delay by taking a lenient view. 9. With the aforesaid observations and directions, the CRLLP stands disposed of. Signature Not Verified Digitally Signed Signed by: DEBASIS AECH Debasis Reason: Authentication Location: ORISSA HIGH COURT Date: 27-Oct-2025 15:01:02 ( A.K. Mohapatra ) Judge Page 4 of 4.