Orissa High Court
Criminal Procedure Code vs Jagannath Barik on 17 April, 2026
Author: Sanjeeb K Panigrahi
Bench: Sanjeeb K Panigrahi
Signature Not Verified
Digitally Signed
Signed by: BHABAGRAHI JHANKAR
Reason: Authentication
Location: ORISSA HIGH COURT,
CUTTACK
Date: 20-Apr-2026 17:51:41
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLLP No.17 of 2021
(In the matter of an application under Section 419(4) of Bharatiya
Nagarik Suraksha Sanhita, 2023 corresponding to Section 378(4) of
Criminal Procedure Code, 1973).
Ashok Kumar Pati .... Appellant (s)
-versus-
Jagannath Barik .... Respondent (s)
Advocates appeared in the case through Hybrid Mode:
For Appellant (s) : Mr. Ashok Kumar Behera, Adv.
For Respondent (s) : Mr. R. Behera, Adv.
CORAM:
DR. JUSTICE SANJEEB K PANIGRAHI
DATE OF HEARING:-09.04.2026
DATE OF JUDGMENT:-17.04.2026
Dr. Sanjeeb K Panigrahi, J.
1. The Appellant has filed the instant CRLLP under Section 378(4) of the
Code of Criminal Procedure, 1973/ Section 419(4) of Bharatiya Nagarik
Suraksha Sanhita, 2023, invoking the appellant jurisdiction of this
Court. The appeal is preferred against the Judgment dated 03.05.2021
passed by the learned J.M.F.C, Jajpur, in J.O. Code-OD-00825, in 1CC
Case No. 295/2018 (T.R. No. 92/2021), whereby the Respondent has
been acquitted for the offence committed under Section 138 of
Negotiable Instrument Act, 1881.
I. FACTUAL MATRIX OF THE CASE:
2. The brief facts of the case are as follows:
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(i) On 02.11.2018, the Appellant instituted a complaint petition,
being 1CC Case No. 295 of 2018, under Section 138 of the
Negotiable Instrument Act, 1881, against the Respondent,
alleging dishonour of a cheque issued by the Respondent in
favour of the Appellant towards discharge of a legally
enforceable debt/liability.
(ii) It was stated therein that the Appellant and the Respondent
were well acquainted with each other, being residents of the
same village. The Respondent had taken a cash loan of Rs.
4,50,000/- from the Appellant to meet the expenses of his
daughter’s marriage, with a promise to repay the said amount
within 15 days from the date of receipt.
(iii) Thereafter, the Respondent received the said amount but failed
to repay the same within the stipulated period as promised.
Despite repeated demands made by the Appellant, the
Respondent avoided repayment on one pretext or the other.
(iv) Ultimately, on 24.06.2018, the Respondent issued a cheque
bearing No. 012455 drawn on Bank of India, Chittalo Branch,
Jajpur for an amount of Rs. 4,50,000/- in favour of the Appellant,
assuring that sufficient funds were available in his account for
its encashment. Thereafter, on 24.09.2018, the Appellant
presented the said cheque in his collecting bank, i.e., Union
Bank of India, Jajpur Town Branch, for encashment, but the
same was returned unpaid with the endorsement “Funds
Insufficient”.
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Date: 20-Apr-2026 17:51:41
(v) Thereafter, on 10.10.2018, the Appellant issued a statutory
demand notice under Section 138 of N.I. Act, 1881, to the
Respondent by registered post, demanding payment of the
cheque amount, which was duly received by the Respondent.
(vi) On the basis of the said complaint, a complaint case was
registered on 02.11.2018, wherein the initial statement of the
complainant under Section 200 of Cr.P.C. was recorded on
05.01.2019, and cognizance under Section 138 of N.I. Act, was
taken against the Respondent.
(vii) Thereafter, the Appellant substantiated his case by adducing
both oral as well as documentary evidence. The learned
Magistrate framed as many as six issues for determination;
however, upon an erroneous appreciation of the materials on
record, vide judgment dated 03.05.2021, acquitted the
Respondent by holding him not guilty of the offence punishable
under Section 138 of N.I. Act, 1881.
Being aggrieved by the aforesaid facts and circumstances, the
Petitioner has been constrained to approach this Court by way of the
present criminal appeal.
II. SUBMISSIONS ON BEHALF OF THE APPELLANT:
3. The learned counsel for the Appellant respectfully and earnestly made
the following submissions in support of his contentions:
(i) The Appellants submits that the judgment of acquittal passed by
the learned J.M.F.C , Jajpur, whereby the appellant has been
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Date: 20-Apr-2026 17:51:41acquitted, is wholly erroneous, unsustainable both on facts and
in law, and is liable to be set aside.
(ii) The Appellant further submits that the learned Trial Court has
failed to properly appreciate the materials and evidences
available on record and thereby erroneously recorded the order
of acquital. It is contended that the learned Court below has not
applied the cardinal principles of criminal jurisprudence and the
settled principles governing appreciation of evidence, as a result
of which the impugned judgment has become legally
unsustainable.
(iii) The Appellants contends that the learned Magistrate has lost
sight of the admitted factual matrix, namely that the cheque in
question was issued by the Respondent on 24.06.2028; the same
was presented by the complainant for encashment and was
returned unpaid by the bank on 24.09.2018; thereafter, a
statutory demand notice was issued on 10.10.2018, which was
duly received by the Respondent on 11.10.2018; and
consequently, the complaint petition was filed on 02.11.2018,
well within the prescribed period of limitation.
(iv) The Appellant further submits that the learned Magistrate has
committed a grave error in disregarding the categorical
admission made by the accused during his cross-examination;
wherein he admitted the receipt of the demand notice dated
10.10.2018, albeit without specifying the exact date of receipt. It
is contended that, such an admission being a material and
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undisputed fact, the learned magistrate ought not to have
disbelieved or ignored the same.
(v) The Appellant further contends that the learned Magistrate,
without proper application of judicial mind, has accepted the
plea of fraud in respect of the admittedly issued cheque, which
was raised by the Respondent for the first time after an
inordinate delay of nearly two years. It is submitted that such a
belated and unsubstantiated plea ought not to have been
entertained, particularly in the face of admitted issuance of the
cheque.
(vi) The Appellant further submits that the learned Magistrate has
misinterpreted the relevant provisions of law, in holding that
the was premature on the ground that it had not been filed after
the expiry of thirty days, and consequently, that no cause of
action had arisen under the N.I Act. It is contended that, on such
erroneous reasoning, the learned Magistrate proceeded to acquit
the accused, which finding is legally unsustainable.
III. SUBMISSIONS ON BEHALF OF THE RESPONDENT:
4. Per contra, the learned counsel for the Respondent earnestly made the
submission that the present CRLLP deserves to be rejected in limine.
(i) The Respondent submits that, the learned Magistrate, upon
proper appreciation of the oral and documentary evidence
available on record, has rightly passed the impugned judgment
of acquittal against the Respondent. The findings recorded by
the learned Magistrate are well-reasoned, based on cogent and
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Date: 20-Apr-2026 17:51:41credible evidence. Therefore, it is humbly prayed that the
judgment of acquittal passed by the learned Magistrate be
upheld and the appeal preferred by the Appellant be dismissed.
(ii) It is vehemently contented on behalf of the Respondent that the
prosecution has successfully established the commission of the
offence under Section 138 of N.I. Act, by adducing cogent,
credible, and reliable evidence, thereby proving the case beyond
all reasonable doubts.
(iii) It is further submitted that the testimony of the complainant, in
itself, is sufficient to sustain the order of acquittal, and the same
stands duly corroborated by the surrounding circumstances
brought on record. It is therefore, contended that the learned
Magistrate has rightly arrived at the conclusion that the
Appellant had not committed the offence as alleged.
(iv) The Respondent submits that there is no longer res integra and
stands settled by a catena of judgments of the Supreme Court,
wherein it has been consistently held that the power to permit
production of additional evidence at the appellate stage is not to
be exercised in a routine or casual manner, but only in
exceptional circumstances. It is further contended that such
discretion may be invoked only where the party seeking to
adduce additional evidence establishes that, despite due
diligence, it was prevented from producing the same during the
course of trial.
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(v) The Respondent further submits that on 24.06.2018, he issued a
Cheque bearing No. 012455, drawn on Bank of India, Chittalo
Branch, Jajpur, for an amount of Rs. 4,50,000/- , assuring that
sufficient funds were available in his account for due realization
of the said cheque.
(vi) The Respondent contends that, out of grudge and undue
anxiety, the complainant has devised the present proceedings
with an oblique motive to harass his father-in-law, as D.W.1 did
not accede to the proposal land transaction in accordance with
the complainant’s wishes.
(vii) The Respondent further contends that, as evident from the
ocular evidence elicited during the cross-examination of C.W.1,
it has been admitted that the accused had filled in the particulars
on the cheque and handed over the same to the complainant. It
is further stated that the witness could not even recollect
whether the entries on the cheque were written in English or
any other language, thereby rendering his version doubtful and
unreliabale.
IV. FINDINGS OF THE J.M.F.C, JAJPUR:
5. The learned Trial Court framed charges under Section 138 of N.I. Act,
alleging that the Opp. Party has not committed the alleged offence.
Upon conclusion of the trial and appreciation of the evidence adduced
by the prosecution, it was found that the Opp. Party was not guilty
and accordingly acquitted him.
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Location: ORISSA HIGH COURT,
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Date: 20-Apr-2026 17:51:41
6. Upon appreciation of the oral and documentary evidence available on
record, the learned Magistrate held that sufficient materials were not
available to substantiate the charges framed against the Opp. Party.
On a careful evaluation of the testimonies of the witnesses, the learned
Trial Court arrived at the conclusions that there was no such
dishonour of cheque. Accordingly, the Trial Court held that the
charges under Section 138 of N.I. Act does not stood proved.
7. The accused admitted that the signature was executed in Odia
language, and he alleged that the complainant had played fraud amd
deception while obtaining his signatures on certain bank documents
for the purpose of opening a bank account. The said circumstances,
according to the defence, stand corroborated by the testimony of
D.W.2.
8. The evidence on record pertaining to issuance of the statutory legal
demand notice, as well as the returned postal A.D. or the tracking
report indicating the date of receipt of the said notice, has not been
placed on record by the complainant so as to corroborate the ocular
testimony with the averments in the complaint petition.
9. On the basis of the aforesaid findings, the learned Magistrate
concluded that the prosecution had not successfully established the
offence under Section 138 of N.I. Act. Consequently, the accused was
acquitted.
V. COURT’S REASONING AND ANALYSIS:
10. The offence under Section 138 of Negotiable Instrument Act, 1881,
necessitates a careful and meticulous scrutiny of the entire factual
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matrix, having regard to the legislative intent underlying the
provision. The statement of Objects and Reasons of Act 66 of 1988
makes it abundantly clear that the provision was introduced “….to
enhance the acceptability of cheques in settlement of liabilities by
making the drawer liable for penalties in case of bouncing of cheques
due to insufficiency of funds in the accounts or for the reason that it
exceeds the arrangements made by the drawer, with adequate
safeguards to prevent harassment of honest drawers”. Thus, the
provision seeks to strike a delicate balance between ensuring the
credibility of commercial transactions and protecting bona fide
drawers from undue prosecution.
11. The appellant/complainant, being a person aggrieved by the
dishonour of cheque, squarely falls within the ambit of a “victim” as
contemplated under the proviso to Section 372 of the Cr.P.C/ Section
413 of the BNSS, read with the definition of “victim” under Section
2(wa) of the Cr.P.C. In such view of the matter, the Appellant was
contemplated to prefer an appeal in his capacity as a victim and was
not required to invoke the provision of Section 378(4) of the Cr.P.C/
Section 419(4) of the BNSS.
12. In the context of offences under the N.I. Act, 1881, particularly those
falling within the ambit of Section 138 thereof, the complainant is
undeniably the aggrieved party, having suffered pecuniary loss and
legal injury on account of the default in payment by the accused
consequent upon dishonour of the cheque, which is statutorily
deemed to constitute an offence, in such circumstances, it would be
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just, reasonable and in consonance with the underlying spirit of the
Cr.P.C to hold that the complainant under the Act would also fall
within the definition of a “victim” as envisaged under Section 2(wa)
of the Cr.P.C/ Section 2(1)(y) of the BNSS. Consequently, such a
complainant would be entitled to avail the benefit of the proviso to
Section 372 of Cr.P.C/ Section 413 of BNSS, thereby enabling him to
maintain an appeal against an order of acquittal in his own right,
without the necessity of seeking special leave under Section 378(4) of
the Cr.P.C/ Section 419(4) of the BNSS.
13. This Court also places reliance upon the decision of the Supreme
Court in M/s. Celestium Financial v. A. Gnanasekaran1, wherein a
similar interpretation has been adopted. In the said decision, reference
has been made to the judgment in was echoed by referring to the case
of Mallikarjun Kodagali (dead) represented through Legal
Representative v. State of Karnataka2, (herein referred as
Mallikarjun Kodagali), wherein the Supreme Court took note of four
significant reports dealing with the the rights of victims of crime and
the remedies available to the victim. The same may be briefly
discussed as hereunder:
i. The first report is the 154th Report of the Law Commission of
India of August, 1996. The said Report touched upon, inter
alia, compensation to be paid to the victim of crime their
rehabilitation, etc.
ii. In March 2003, Justice Malimath Committee submitted its
report on ‘Reforms of Criminal Justice System’. Paragraph1
2025 (SC) 666
2
(2019) 2 SCC 752Page 10
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Date: 20-Apr-2026 17:51:412.21 in the chapter on Adversarial Rights under the
subheading of ‘Victims Right to Appeal’, states as under:
“2.21. The victim or his representative who is a party
to the trial should have a right to prefer an appeal
against any adverse order passed by the Trial Court.
In such an appeal he could challenge the acquittal, or
conviction for a lesser offence or inadequacy of
sentence, or I. regard to compensation payable to the
victim. The appellate court should have the same
powers as the trial court in regard to assessment of
evidence and awarding of sentence.”
There is also discussion on the other rights of victims under
the Chapter titled, ‘Justice to Victims’. In paragraph
6.(14)(v), Justice Malimath Committee made the following
recommendations:
“6.(14)(v) The victim shall have a right to prefer an
appeal against any adverse order passed by the court
acquitting the accused, convicting for a lesser offence,
imposing inadequate sentence or granting inadequate
compensation. Such appeal shall lie to the court to
which an appeal ordinarily lies against the order of
conviction of such court.”
iii. In July 2007, a report of the Committee on the Draft
National Policy on Criminal Justice was submitted which is
also known as ‘Professor Madhava Menon Committee
Report’. Observations with regard to providing victim-
oriented criminal justice and a balance between the
constitutional rights of an accused and victim of crime have
been discussed. One of the suggestions made is that the
victim must be impleaded in the trial proceedings so that
such a party would have right to file an appeal against an
adverse order, particularly an order of acquittal.
iv. In the 221st Report of the Law Commission of India
submitted in April, 2009, it has been noted that as the law
then stood, an aggrieved person could not file an appeal
against an order of acquittal. However, a revision petition
could be filed. Nothing that the powers of a revisional court
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are limited and the process involved is cumbersome, a
recommendation was made by the Law Commission that as
against an order of acquittal passed by a Magistrate, a
victim should be entitled to file an appeal before the
revisional court. Similarly, in complaint case, the
appeal should be provided to the Sessions Court
instead of the High Court. However, it was suggested
that the aggrieved person on complaint should have
the right to prefer an appeal with the leave of the
appellate court.
v. It was further recommended that Section 378 of the Cr.P.C
requires and amendment with a view to enable filing of
appeals in complaint cases also in the Sessions Court in the
case of Mallikarjun Kodagali. There are Division Bench
decisions of the High Court taking different views.
Mallikarjun Kodgali and referred to the Declaration of the
Basic Principles of Justice for Victims of Crime and Abuse of
Power adopted by the General Assembly of the United
Nations in the 96th Plenary Session on 29.11.1985. wherein,
it was observed that:
“75. Under the circumstances, on the basis of the plain
language of the law and also as interpreted by several
High Courts and in addition the resolution of the
General Assembly of the United Nations it is quite
clear to us that a victim as defined under Section
2(wa) Cr.P.C would be entitled to file an appeal before
the Court to which an appeal ordinarily lies against
the order of conviction….
76. ……. The language of the proviso to Section 372 Cr.P.C
is quite clear, particularly when it is contrasted with the
language of Section 378(4) Cr.P.C. The text of this provision
is quite clear and it is confined to an order of acquittal
passed in a case instituted upon a complaint. The word
“complaint” has been defined in Section 2(d) Cr.P.C and
refers to any allegation made orally or in writing to a
Magistrate. This has nothing to do with the lodging or the
registration of an FIR, and therefore it is not at all necessaryPage 12
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Date: 20-Apr-2026 17:51:41to consider the effect of a victim being the complainant as far
as the proviso to Section 372 Cr.P.C is concerned.”
14. It is by virtue of the amendment act of 2009 that the proviso to Section
372 of Cr.P.C came to be incorporated, thereby conferring upon the
victim a statutory right to prefer an appeal against an order of
acquittal. The Court has observed that the definition of “victim” is of
an inclusive nature, intended to encompass any person who has
suffered loss or injury as a consequence of the act or omission for
which the accused has been charged. The said provision read as
follows:-
“Section 2(wa) of Cr.P.C/ Section 2(1)(y) of BNSS-
“Victim” means a person who has suffered any loss or
injury caused by reason of the act or omission for which the
accused person has been charges and the expression victim
includes his or her guardian or legal heir.”
In the present case in hand, the Appellant is aggrieved by the
Judgment dated 03.05.2021 passed by the learned J.M.F.C, Jajpur,
whereby the Respondent has been acquitted of the charge. In such
circumstances, the Appellant, having suffered legal injury on account
of the said acquittal, squarely falls within the ambit of a “victim” in
relation to the offence in question. Consequently, the Appellant is
duly entitled, in law, to prefer an appeal against the order of acquittal
by invoking the proviso of Section 372 of CrPC/ Section 413 of the
BNSS, which specifically confers such a right, without recourse to any
other provision.
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15. On the plain reading of the provision Section 372 of the Cr.P.C/
Section 413 of the BNSS makes it abundantly clear that No appeal to lie
unless otherwise provided and states that-
“No appeal shall lie from any judgment or order of a
Criminal Court except as provided by this Code by any
other law for the time being in force.
Provided that the victim shall have a right to prefer an
appeal against any order passed by the Court
acquitting the accused or convicting for a lesser
offence or imposing inadequate compensation, and
such appeal shall lie to the Court to which an appeal
ordinarily lies against the order of conviction of such
Court.”
In consequence of the aforesaid provision, the appropriate forum for
the Appellant was to initially approach the Court of Sessions, where
the statutory remedy was efficaciously available. Resort to such forum
would have ensured expeditious consideration and effective
adjudication of the grievance by invoking the remedy contemplated
under the said provision.
16. In the case involving an offence under Section 138 of the N.I. Act, this
Court is of the considered view that the complainant, having suffered
on account of the dishonour of a cheque, squarely falls within the
category of a “victim”. In such circumstances, the complainant is
entitled to invoke the proviso to Section 372 of the CrPC/ Section 413
of the BNSS and may avail the remedy provided therein. It is
therefore, not obligatory for the complainant to resort to the
provisions of Section 378 of the CrPC/ 419 of the BNSS for preferring
an appeal against an order of acquittal.
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17. The complainant in a proceeding under Section 138 of the N.I. Act,
being the person who has suffered on account of the dishonour of the
cheque, is in fact the “victim” and, as such, is entitled to prefer an
appeal under the said provision. Merely because the proceeding
under Section 138 of the Act is initiated by way of a complaint under
Section 200 of the CrPC, the complainant does not lose the character of
a victim, inasmuch as it is only the person aggrieved by the dishonour
who is competent to set the criminal law in motion. Thus, in
proceedings under Section 138 of the Act, the complainant and the
victim are, in essence, one and the same person, and are entitled to
avail the remedies conferred upon a victim under law.
18. In the aforesaid circumstances, this Court finds that Section 138 of the
N.I. Act, 1881, being a penal provision engrafted by way of a legal
fiction, contemplates prosecution at the instance of the person
aggrieved by the dishonour of the cheque. Consequently, in the event
of an order of acquittal, such a person, being the one entitled to the
proceeds of the dishonoured cheque, would squarely fall within the
ambit of a “victim”. As such, he is legally contemplated to assail the
order of acquittal by invoking the proviso to Section 372 of the CrPC/
Section 413 of BNSS, and to pursue the remedy of appeal in his
capacity as a victim under the said provisions.
19. It is also pertinent to note that the role of the State in prosecutions
under Section 138 of the N.I., 1881, is conspicuously minimal,
inasmuch as such proceedings are instituted by way of a private
complaint under Section 200 of the Cr.P.C. Further, Section 143 of the
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Act, by express legislative mandate, incorporates the procedure
prescribed under the Cr.P.C for the trial of such offences, which are
deemed to be criminal in nature.
20. In view of the aforesaid statutory scheme, the complainant, being the
person who has suffered on account of the dishonour of the cheque,
must necessarily be construed as a “victim” within the meaning of
Section 2(wa) of the CrP.C/ Section 2(1)(y) of the BNSS. Consequently,
such a complaint is entitled, in law, to prefer appeal against an order
of acquittal by invoking the proviso to Section 372 of the Cr.P.C/
Section 413 of the BNSS, in his capacity as a victim of the offence.
21. In view of the foregoing discussions, this is of the considered opinion
that a victim of an offence possesses an independent and substantive
right to prefer an appeal under Section 372 of the CrPC/ Section 413 of
BNSS, irrespective of whether such victim is also the complainant in
the case. Even where the victim assumes the role of a complainant, he
does not forfeit or dilute the said right and may, in law, avail the
remedy under the proviso to Section 372 of the Cr.P.C./ Section 413 of
the BNSS, without being compelled to resort to sub-section (4) of
Section 378 of the CrPC/ Section 419 of BNSS.
VI. CONCLUSION:
22. In view of the foregoing analysis and upon an anxious and
meticulous consideration of the material facts and circumstances of
the case, this Court is of the considered and firm opinion that the
CRLLP stands disposed of.
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23. However, with a direction that, the liberty is reserved in favour of the
Appellant to avail the appropriate statutory remedy by preferring an
appeal against the order of acquittal, in terms of the proviso to Section
372 of CrPC/ Section 413 of the BNSS, within a reasonable time.
Consequently, this Court is not inclined to accede to the relief sought
for by the Appellant.
24. Interim order, if any, passed earlier stands vacated.
(Dr. Sanjeeb K Panigrahi)
Judge
Orissa High Court, Cuttack,
Dated the 17th April, 2026/
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