IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI

th

ON THE 12 OF JANUARY, 2026

CRIMINAL APPEAL No. 1672 of 2017

RAJESH KUMAR SONI

Versus

DR. S.S. ALI @ DR. ALI

Appearance:

None for the appellant.

ORDER

This appeal has been filed under Section 378(4) of Cr.P.C. by

“victim/complainant” against the judgment dated 23.05.2016 passed by Judicial Magistrate First Class Jabalpur (M.P.) in Criminal Complaint No.10832/2009, whereby respondent/accused has been acquitted of an

offence under Section 138 of N.I. Act.

2. Aforesaid criminal case was instituted on the basis of private

complaint filed by the victim/appellant.

3. The question before this Court is whether instant appeal is covered

under proviso to Section 413 of BNSS (372 of Cr.P.C.).

4. The aforesaid issue is no longer res integra in light of the

judgment of Hon'ble Apex Court in the case of Celestium Financial Vs. A. Gnanasekaran Etc., 2025 SCC Online SC 1320. The issue arose in said adjudication was whether an appeal would be maintainable under the proviso to Section 372 of the Code of Criminal Procedure, 1973 against an order of acquittal passed in a case instituted upon a private complaint under Section

138 of the Negotiable Instruments Act, 1881 by treating the complainant as a victim within the meaning prescribed under Section 2(wa) of the Cr.P.C.

5. It is observed by Hon’ble Apex Court in para 9 and 10 of Celestium Financial (supra) as under:-

“9. In the circumstances, we find that Section 138 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, 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 CrPC, 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 CrPC, 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 CrPC 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 CrPC.

10. As already noted, the proviso to Section 372 of the CrPC 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 discussion, we hold that the victim of an offence has the right to prefer an appeal under the proviso to Section 372 of the CrPC, 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 CrPC."

6. Having regard to the law laid down in the aforesaid case as well as the factual matrix of the instant case, this Court is of the considered view that in the present appeal, appellant as a victim has