IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR

th

ON THE 19 OF FEBRUARY, 2026 MISC. CRIMINAL CASE No. 36961 of 2018 PRASHANT SHARMA Versus GHANSHYAM Appearance:

Shri Arvind Kumar Sharma - Advocate for the petitioner.

Shri Satanand Choubay, learned counsel for the respondent [R-1].

ORDER This miscellaneous petition u/S 378(4) of Cr.P.C. has been filed feeling aggrieved by the Judgment dated 22.01.2018 passed in Criminal Case No. RCT No. 300117/2016, whereby the learned Judicial Magistrate First Class, Agar Distt. Agar Malwa has acquitted the accused/respondent of the charges under Section 138 of the Negotiable Instrument Act, 1881(for short, referred to as 'N.I. Act' hereinafter).

2. The exposition of facts giving rise to the present petition is as under:

a. Complainant and the respondents were friends. Respondent had borrowed an amount of Rs. 90,000/- from the complainant due to financial crisis in his business with a promise to return the same within three days. Respondent could not pay the money within the time limit. Therefore, complainant raised demand of return of his money. The respondent had given a cheque of Bank of India, Barod Branch bearing no. 030319 dated 19.09.2015 of Rs. 90,000 in lieu of the outstanding loan amount. The complainant presented the cheques in his Bank of India, Barod Branch. The cheque was dishonoured and returned back to the complainant , but the respondent did not return the money. The complainant has given legal demand notice dated 30.11.2025 through registered AD post. But the cheque amount was not paid. Accordingly, a private complaint was filed before the Court for offence punishable u/S 138 of N.I. Act.

b. The trial Court acquitted the accused/respondent of the offence punishable u/S 138 of N.I. Act.

c. The present petition has been filed seeking leave to appeal before this Court. The learned counsel for the petitioner proposes to withdraw this petition in view of the law laid down in the case of M/s. Celestium Financial vs. A. Gnanasekaran Etc. reported in 2025 INSC 804 with liberty to file appeal before the appellate forum.

3. Heard, learned counsel for the petitioner and perused the record.

4. The Supreme Court in the case of M/s. Celestium Financial (supra) 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 further held that the complainant in a complaint under Section 138 of the N.I. Act of 1881 is entitled to file an appeal under proviso to Section 372 of the Cr.P.C/Section 413 of the BNSS. The relevant portion of the aforesaid judgment is reproduced as under:-

"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 without 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 th