##PAGE1##

NEUTRAL CITATION NO. 2026:MPHC-JBP:8787

1 MCRC-9914-2016

IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR

BEFORE

HON'BLE SHRI JUSTICE HIMANSHU JOSHI

th

ON THE 30 OF JANUARY, 2026

MISC. CRIMINAL CASE No. 9914 of 2016

ROMESH PANDEY

Versus

NARESH SHRIVASTAVA

Appearance:

None for the parties.

ORDER

Heard on I.A. No.11398/2016 - application under Section 5 of Limitation

Act for condonation of delay.

2. Considering the averments made in the application, supported by an

affidavit of the applicant, I find that good and sufficient cause is made out to

condone the delay. Hence, the IA is allowed. Delay in filing the appeal is hereby

condoned.

3. Heard on the application under Section 378(4) of CrPC for grant of

leave to appeal. This application has been filed by the applicant against the

judgment passed by the Judicial Magistrate First Class, Rewa dated 29.04.2017 in

R.T. No.2004/2009, whereby the learned trial Court has acquitted the respondent

for the charge under Section 138 of N.I. Act, 1881.

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

complaint filed by the victim/applicant.

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

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

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

Signature Not Verified

Signed by: JASLEEN SINGH

SALUJA

Signing time: 31-01-2026

12:34:28

NEUTRAL CITATION NO. 2026:MPHC-JBP:8787

2 MCRC-9914-2016

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.

7. 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 afores