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IN THE HIGH COURT OF ORISSA AT CUTTACK

CRLLP No.70 of 2013

Mira Sahu ..... Petitioner

Represented by Adv. -

M/s.Chandana Panda

-versus-

Rama Chandra Nath ..... Opposite Party

Represented by Adv. -

CORAM:

MR. JUSTICE ADITYA KUMAR

THE HON’BLE

MOHAPATRA

ORDER

22.12.2025

Order No.

06. 1. This matter is taken up through Hybrid Arrangement (Virtual

/Physical Mode).

2. Heard learned counsel for the Petitioner. Perused the

application as well as the prayer made therein.

3. The present application has been filed under Section 378(4) of

the Cr.P.C. by the complainant against an order of acquittal dated

26.03.2013 passed by the learned Special Judicial Magistrate,

Balasore in 1.C.C. No.403 of 2005 which corresponds to T.R.

No.255 of 2012.

4. The abovenoted 1.C.C. case was registered on the basis of a

complaint alleging commission of an offence punishable under

Section 138 of the N.I. Act. During the trial the accused persons

were summoned and they faced trial. Eventually, the learned trial

court has delivered the judgment of acquittal against the accused-

Page 1 of 4.

Opposite party. Being aggrieved by such order the complainant has

approached this Court by filing the present application under the

provision of Section 419(4) of the B.N.S.S seeking leave to prefer an

appeal.

5. In course of argument, learned counsel for the Petitioner,

drawing attention to the judgment of the Hon’ble Supreme Court in

Celestium Financial vs. A. Gnanasekaran Etc. reported in (2025)

SCC Online SC 1320, contended that right of the complainant to

prefer an appeal under the proviso to Section 372 of Cr.P.C has been

recognised by the Hon’ble Apex Court in the aforesaid judgment. In

such view of the matter, learned counsel for the Petitioner contended

that the Petitioner be permitted to prefer an appeal under the proviso

to Section 372 of Cr.P.C.

6. On perusal of the judgment of the Hon’ble Supreme Court in

Celestium Financial’s case (Supra), this Court observes that the

Hon’ble Supreme Court has equated the complainant with the victim

as has been described in the proviso to Section 372 of Cr.P.C.

Accordingly, the right of the complainant to prefer an appeal under

the proviso to Section 372 has been recognised by the Hon’ble

Supreme Court and the complainant was granted liberty to prefer an

appeal against the judgment of acquittal under the proviso to Section

372 of the Cr.P.C. In the aforesaid context, it would be profitable to

refer to the relevant portion of the judgment. Para-9 & Para-10 of the

judgment are quoted herein below:-

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,

Page 2 of 4.

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 Cr.P.C., 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 Cr.P.C., 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