Madhya Pradesh High Court
Revti Nandan vs Neeraj Kumar Patidar on 7 May, 2026
NEUTRAL CITATION NO. 2026:MPHC-IND:13156
1 CRA-12474-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 7 th OF MAY, 2026
CRIMINAL APPEAL No. 12474 of 2024
REVTI NANDAN
Versus
NEERAJ KUMAR PATIDAR
Appearance:
Shri Manish Kumar Vijaywargiya - Advocate for the appellant.
ORDER
Heard on the question of maintainability.
02. This appeal under Section 419(4) of the Bhartiya Nagrik Suraksha
Sanhita, 2023 (earlier section 378(4) of the Code of Criminal Procedure,
1973) is preferred by the complainant challenging the acquittal of the
respondent/accused from the charges under Section 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred as “138 of the Act of 1881”) in
SCNIA/384/2021 by the Judicial Magistrate First Class, District – Shajapur
(M.P.) alongwith I.A.No.18056/2024 for grant of leave to appeal.
03. The Supreme Court in the matter of M/s. Celestium Financial vs.
A. Gnanasekaran Etc. reported in 2025 INSC 804 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 has further held
that the complainant in a complaint under Section 138 of the N.I. Act of
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1881 can also be entitled to file an appeal under proviso to section 372 of the
Cr.P.C. corresponding to Section 413 of the BNSS.
04. Relevant portion of the aforesaid judgment is reproduced as
under:-
“7. xxx xxx xxx
7.1 xxx xxx xxx
7.2 xxx xxx xxx
7.3 xxx xxx xxx
7.4 xxx xxx xxx
7.5 xxx xxx xxx
7.6 xxx xxx xxx
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 withouthe 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.
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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. 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 the proviso to Section
372 does not make a distinction between an accused who is charged of
an offence under the penal law or a person who is deemed to have
committed an offence under Section 138 of the Act. Symmetrical to a
victim of an offence, a victim of a deemed offence. under Section 138
of the Act also has the right to prefer an appeal against any order
passed by the court acquitting the accused or convicting for a lesser
offence or imposing an inadequate compensation. When viewed from
the perspective of an offence under any penal law or a deemed offence
under Section 138 of the Act, the right to file an appeal is not
circumscribed by any condition as such, so long as the appeal can be
premised in accordance with proviso to Section 372 which is the right
to file an appeal by a victim, provided the circumstances which enable
such a victim to file an appeal are met. The complainant under SectionSignature Not Verified
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138 is the victim who must also have the right to prefer an appeal
under the said provision. Merely because the proceeding under Section
138 of the Act commences with the filing of a complaint under Section
200 of the CrPC by a complainant, he does not cease to be a victim
inasmuch as it is only a victim of a dishonour of cheque who can file a
complaint. Thus, under Section 138 of the Act both the complainant as
well as the victim are one and the same person.
7.10 Section 378 of the CrPC is a specific provision dealing
with appeals. Sub-section (3) of Section 378 states that no appeal to
the High Court under sub-section (1) or sub-section (2) shall be
entertained except with the leave of the Court, with which we are not
concerned in the instant case. However, sub-section (4) of Section 378
is pertinent. It states that if an order of acquittal is passed in any case
instituted upon a complaint and the High Court, on an application
made to it by the complainant in that behalf, grants special leave to
appeal from the order of acquittal, the complainant may present such
an appeal to the High Court. The limitation period for seeking special
leave to appeal is six months where the complainant is a public
servant and sixty days in every other case, computed from the date of
the order of acquittal. Sub-Section (6) states that if, in any case, the
application under sub-section (4) for grant of special leave to appeal
from an order of acquittal is refused, no appeal from that order of
acquittal shall lie under sub-section (1) or under sub-section (2) of
Section 378.
7.11 A reading of section 378 would clearly indicate that in case
the complainant intends to file an appeal against the order of acquittal,Signature Not Verified
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his right is circumscribed by certain conditions precedent. When an
appeal is to be preferred by a complainant, the first question is,
whether, the complainant is also the victim or only an informant. If the
complainant is not a victim and the case is instituted upon a complaint,
then sub-section (4) requires that the complainant must seek special
leave to appeal from an order of acquittal from the High Court. As
noted under sub-section (6), if the application under sub-section (4) for
grant of special leave to appeal from the order of acquittal is refused,
no appeal from that order of acquittal would lie, inter alia, under sub-
section (1) of Section 378. However, if the complainant is also a
victim, he could proceed under the proviso to Section 372, in which
case the rigour of sub-section (4) of Section 378, which mandates
obtaining special leave to appeal, would not arise at all, as he can
prefer an appeal as a victim and as a matter of right. Thus, if a victim
who is a complainant, proceeds under Section 378, the necessity of
seeking special leave to appeal would arise but if a victim whether he
is a complainant or not, files an appeal in terms of proviso to Section
372, then the mandate of seeking special leave to appeal would not
arise.
7.12 The reasons for the above distinction are not far to see and
can be elaborated as follows:
Firstly, the victim of a crime must have an absolute right to
prefer an appeal which cannot be circumscribed by any condition
precedent. In the instant case, a victim under Section 138 of the Act,
i.e., a payee or the holder of a cheque is a person who has suffered the
impact of the offence committed by a person who is charged of theSignature Not Verified
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offence, namely, the accused, whose cheque has been dishonoured.
Secondly, the right of a victim of a crime must be placed on par
with the right of an accused who has suffered a conviction, who, as a
matter of right can prefer an appeal under Section 374 of the CrPC. A
person convicted of a crime has the right to prefer an appeal under
Section 374 as a matter of right and not being subjected to any
conditions. Similarly, a victim of a crime, whatever be the nature of the
crime, unconditionally must have a right to prefer an appeal.
Thirdly, it is for this reason that the Parliament thought it fit to
insert the proviso to sub-section 372 without mandating any condition
precedent to be fulfilled by the victim of an offence, which expression
also includes the legal representatives of a deceased victim who can
prefer an appeal.
On the contrary, as against an order of acquittal, the State,
through the Public Prosecutor can prefer an appeal even if the
complainant does not prefer such an appeal, though of course such an
appeal is with the leave of the court. However, it is not always
necessary for the State or a complainant to prefer an appeal. But when
it comes to a victim’s right to prefer an appeal, the insistence on
seeking special leave to appeal from the High Court under Section
378(4) of the CrPC would be contrary to what has been intended by
the Parliament by insertion of the proviso to Section 372 of the CrPC.
Fourthly, the Parliament has not amended Section 378 to
circumscribe the victim’s right to prefer an appeal just as it has with
regard to a complainant or the State filing an appeal. On the other
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hand, the Parliament has inserted the proviso to Section 372 so as to
envisage a superior right for the victim of an offence to prefer an
appeal on the grounds mentioned therein as compared to a
complainant.
Fifthly, the involvement of the State in respect of an offence
under Section 138 of the Act is conspicuous by its absence. This is
because the complaint filed under that provision is in the nature of a
private complaint as per Section 200 of the CrPC and Section 143 of
the Act by an express intention incorporates the provisions of the CrPC
in the matter of trial of such a deemed offence tried as a criminal
offence. Therefore, the complainant, who is the victim of a dishonour
of cheque must be construed to be victim in terms of the proviso to
Section 372 read with the definition of victim under Section 2(wa) of
the CrPC.
xxx xxx xxx
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
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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.”
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05. In the light of the judgment passed by the Apex Court in the case
o f M/s. Celestium Financial (supra), the complainant under Section 138 of
the N.I. Act, 1881 is not required to seek leave to appeal from the High Court
under Section 419(4) of the B.N.S.S, 2023, he may prefer an appeal under
proviso to Section 372 of the Cr.P.C.
06. The appellant has liberty to prefer an appeal against the impugned
judgment dated 28.09.2024 before the concerned Session Judge within a
period of 60 days from the date of receipt of copy of this order.
07. It is clarified that if such an appeal is filed before the concerned
Session Judge within the time prescribed by this Court, it would not insist
upon the limitation while deciding the same and will proceed to decide the
same in accordance with law.
08. In that view of the matter, Registry is directed to return the
certified copy of the impugned judgment after obtaining the attested
photocopy of the same.
09. The record of the case be sent back to the concerned J.M.F.C.
forthwith.
10. In view of the above, the present appeal is disposed of.
(GAJENDRA SINGH)
JUDGE
akanksha
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