IN THE HIGH COURT OF ORISSA AT CUTTACK CRLLP No.73 of 2012 Rabindra Ku. Biswal ..... Petitioner Represented by Adv. -

M/s.binaya Kumar Mohanty -versus-

Damodar Mohanty ..... Opposite Party Represented by Adv. -

CORAM:

MR. JUSTICE ADITYA KUMAR MOHAPATRA

ORDER

17.12.2025 Order No.

05. 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 judgment of acquittal dated 12.03.2012 passed by the learned S.D.J.M., Jagatsinghpur in 1CC Case No.05 of 2010 which corresponds to Trial Case No.1511 of 2010.

4. The above noted 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-

Opposite party. Being aggrieved by such order the complainant has approached this Court by filing the present application under the provision of Section 378(4) of the Cr.P.C. 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, 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 wh