IN THE HIGH COURT OF MADHYA PRADESH

AT GWALIOR

BEFORE

HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE

th

ON THE 12 OF JANUARY, 2026

MISC. CRIMINAL CASE No. 29 of 2019

KAMAL DUSEJA

Versus

ASHOK KUMAR SINGHAL

Appearance:

Shri Vivek Khedkar - Senior Advocate with Shri Kartik Karara -

Advocate for petitioner.

Shri Anmol Khedkar - Advocate for respondent.

ORDER also be entitled to file an appeal under proviso to section 372 of the Cr.P.C.

This petition under Section 482 of the Code of Criminal Procedure,

1973 has been filed by the petitioner challenging the acquittal of the respondent/accused from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred as "138 of the Act of 1881") by JMFC Gwalior in Criminal Case No. 1038/2011 vide order dated

05.11.2015.

2. 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 the Bhartiya Nagrik Suraksha Sanhita, 2023. The Supreme Court has further held that the complainant in a complaint under Section 138 of the Act of 1881 can

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. 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 without having to seek special leave under Section 378(4) of the CrPC. having to seek special leave under Section 378(4) of the CrPC.

7.8 In the case of an offence alleged against an accused under Section 138 of the Act, we are of the view that the complainant is indeed the victim owing to the alleged dishonour of a cheque. In the circumstances, the complainant can proceed as per the proviso to Section 372 of the CrPC and he may exercise such an option and he need not then elect to proceed under Section

378 of the CrPC.

7.9 In this context, we wish to state that the proviso to Section 372 does not make a distinction between an accused who is charged of an offence under the penal law or a person who is deemed to have committed an offence under Section 138 of the Act. Symmetrical to a victim of an offence, a victim of a deemed offence. under Section 138 of the Act also has the right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing an inadequate compensation. When viewed from the perspective of an offence under any penal law or a deemed offence under Section 138 of the Act, the right to file an appeal is not circumscribed by any condition as such, so long as the appeal can be premised in accordance with proviso to Section 372 which is the right to file an appeal by a vi