2025:CGHC:58972 NAFR Digitally signed by PRAKASH PRAKASH KUMAR HIGH COURT OF CHHATTISGARH AT BILASPUR KUMAR Date:

2025.12.04

17:34:51 +0530 ACQA No. 492 of 2018 Gopal Swami S/o Late Muttu Swami, Aged About 39 Years, Partner- Messrs Shankar Engneering Works R/o Main Road Darri, Tehsil- Katghora, District-

Korba, Chhattisgarh, ... Appellant versus Kailash Kumar Agrawal, S/o Late Changi Ram Agrawal, R/o Flat No.- 402, Building No.- 008 Ashok Ratan, Police Station- Mova, District- Raipur, Chhattisgarh, ... Respondent For Appellant : Ms. Soniya Kuldeep, Advocate For Respondent : None Hon'ble Shri Justice Radhakishan Agrawal

Order on Board

04/12/2025

1. This is an acquittal appeal filed under Section 378(4) of the Cr.P.C. by the complainant/appellant against the order dated 23.03.2018 passed by the Additional Judge to the Court of Additional Sessions Judge, Katghora, District – Korba (C.G.) in Criminal Appeal No.49/2016, whereby the learned Additional Judge to the Court of Additional Sessions Judge, dismissed the criminal appeal as not maintainable as the appellant has remedy to approach the High Court to file the appeal with special leave under Section 378 (4) of the Cr.P.C., arising out of the judgment dated 24.02.2016 passed by the Judicial Magistrate First Class, Katghora, District – Korba, in Criminal Case No.1136/2013, in which the learned JMFC has acquitted the 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 order was also filed and the said application was allowed by this Court on 05.12.2018.

2. Learned counsel for the appellant/complainant submits that since the learned Additional Judge to the Court of Additional Sessions Judge has not decided the appeal on merits, but held the appeal being not maintainable, therefore, she prays for withdrawal of this appeal to file afresh before the concerned Sessions Court. She further submits that though leave to appeal under Section 378(4) of the Cr.P.C. has been granted by this Court on 05.12.2018, 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”). She 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 xxx

7.7 In the context of offences under the Act, particularly under Section 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. C