Madhya Pradesh High Court
Harilal Pichode vs Sheikh Jakir Hussain on 18 March, 2026
NEUTRAL CITATION NO. 2026:MPHC-JBP:22524
1 MCRC-16583-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE B. P. SHARMA
ON THE 18 th OF MARCH, 2026
MISC. CRIMINAL CASE No. 16583 of 2019
HARILAL PICHODE
Versus
SHEIKH JAKIR HUSSAIN
Appearance:
Shri Sameer Qureshi - Advocate for petitioner.
ORDER
This application under Section 378(4) of the Cr.P.C, 1973 has been filed by
the complainant/victim against the judgment dated 25.02.2019 passed by the
Judicial Magistrate First Class, Balaghat (MP) in NIA No.17 of 2018, whereby the
learned trial Court has acquitted the respondent (herein) of the charges under
Section 138 of the Negotiable Instruments Act.
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 (Section 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
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 3/20/2026
11:35:01 AM
NEUTRAL CITATION NO. 2026:MPHC-JBP:22524
2 MCRC-16583-2019
Section 2(wa) of the Cr.P.C.
5. It is observed by Hon’ble Apex Court in paragraphs 9 and 10 of Celestium
Financial (supra) case 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.”
6. Having regard to the law laid down in the aforesaid case as well as the
factual matrix of the instant case, this Court is of the considered view that in the
present appeal, appellant as a victim has a right to prefer an appeal under the
proviso to Section 413 of the BNSS, 2023 (Section 372 of Cr.P.C., 1973) and he
may proceed with accordingly and it is not at all needed to advert to sub section 4
of Section 419 of the BNSS, 2023 [378(4) of Cr.P.C., 1973]. Hence, liberty is
reserved to the victim/appellant herein to file an appeal before the competent
Court, having regard to the proviso to Section 413 of BNSS, 2023 (372 of Cr.P.C.,
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 3/20/2026
11:35:01 AM
NEUTRAL CITATION NO. 2026:MPHC-JBP:22524
3 MCRC-16583-2019
1973) within four months from today.
7. However, it is made clear that if appeal was filed before this Court within
limitation or if appeal was not filed within limitation before this Court but issue
of limitation has already been decided by this Court and the delay in filing the
appeal has been condoned and appeal before concerned Sessions Court is filed
within the period of four months from today, then, issue of limitation shall not be
raised by respondent(s) or by the Appellate Court, but if appeal was not filed
before this Court within limitation as prescribed in the Limitation Act or any
application for condonation of delay is pending today, then, the issue of
limitation/the same shall be decided by the Appellate Court in accordance with
provisions of law.
8. Certified copy of documents, if any, filed by the victim/applicant in the
instant petition, shall be returned back to victim/applicant after substituting
photocopy of the same.
9. Record of the trial Court, if available, shall be sent back immediately to the
concerned Court.
10. Petition filed by the applicant/victim is disposed of in term as above.
(B. P. SHARMA)
JUDGE
THK
Signature Not Verified
Signed by: TAJAMMUL
HUSSAIN KHAN
Signing time: 3/20/2026
11:35:01 AM
