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NEUTRAL CITATION NO. 2026:MPHC-JBP:8424

1 MCRC-14138-2012

IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON'BLE SHRI JUSTICE HIMANSHU JOSHI

th

ON THE 29 OF JANUARY, 2026

MISC. CRIMINAL CASE No. 14138 of 2012

BRIJENDRA HIREPURCHASE AND FINANCE LTD

Versus

ASHI KUMAR SAXENA

Appearance:

Shri Abhyuday Singh - Advocate for petitioner.

ORDER

This petition has been filed by the applicant against the judgment passed by

the Judicial Magistrate First Class, Shahdol dated 03.10.2012 in Complaint Case

No.1756/2009, whereby the learned trial Court has acquitted the respondent for the

charge under Section 138 of NI Act, 1881.

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

by the victim/applicant.

3. The question before this Court is whether instant petition 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.

Signature Not Verified

Signed by: PANKAJ NAGLE

Signing time: 30-01-2026

15:10:36

NEUTRAL CITATION NO. 2026:MPHC-JBP:8424

2 MCRC-14138-2012

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.”

Signature Not Verifie