Bombay High Court
Laxman Krushnarao Dhakate vs Mohd. Imran Rizwi S/O Abdul Sattar Rizwi on 10 December, 2025
Order S138NI
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 261/2014
(Sudhirkumar S/o Brijmohan Zanwar Vs. A.C.E. - S.B. Sales & services Pvt. Ltd. & ors.,)
CRIMINAL APPEAL NO. 263/2014
(Sudhirkumar S/o Brijmohan Zanwar Vs. A.C.E. S.B. Sales & services Pvt. Ltd. & ors.
CRIMINAL APPEAL NO. 492/2015
(Shekhar @ Chandrashekhar S/o Vishnuji Headau Vs. Dr. Ramkrushna S/o. Nathuji Shinde),
CRIMINAL APPEAL NO. 127/2017
(Prabhakar S/o Ukandrao Sonkusare Vs. Vivek S/o. Balchandra Awale),
CRIMINAL APPEAL NO. 403/2021
(Laxman Krushnarao Dhakate Vs. Mohd. Imran Rizwi S/o Abdul Sattar Rizwi),
____________________________________________________________________________________________
Office notes, Office Memoranda of
Coram, appearances, Court's orders Court's or Judge's Orders
or directions and Registrar's orders.
Common Order.
CORAM : M.M. NERLIKAR, J.
DATE : 10/12/2025
The principal challenge in all these matters pertains to
acquittal in cases under Section 138 of the Negotiable Instruments
Act. These Applications/Appeals are filed under Section 378 of the
Code of Criminal Procedure. In some matters, applications are being
filed either seeking condonation of delay in preferring the appeal or
leave to file appeal.
2. Now so far as the issue in respect of preferring Appeal
under Section 372 of the Code by the complainant/victim is
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concerned, the same was considered by the Hon'ble Supreme Court
in case of Celestium Financial .vrs. A. Ganasekaran Etc (2025 SCC
Online SC 1320), wherein the Supreme Court has held as under :
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
without 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
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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 Section 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.
.....
.....
8. The right to prefer an appeal is no doubt a
statutory right and the right to prefer an appeal by an
accused against a conviction is not merely a statutory right
but can also be construed to be a fundamental right under
Articles 14 and 21 of the Constitution. If that is so, then the
right of a victim of an offence to prefer an appeal cannot be
equated with the right of the State or the complainant to
prefer an appeal. Hence, the statutory rigours for filing of an
appeal by the State or by a complainant against an order of
acquittal cannot be read into the proviso to Section 372 of
the CrPC so as to restrict the right of a victim to file an
appeal on the grounds mentioned therein, when none
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exists.
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 51 the right to prefer an
appeal as a victim under the proviso to Section 372 of the
CrPC.
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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."
3. Considering the above position of law as laid down by the
Supreme Court, the learned Counsel appearing in the matter for
applicants/appellants submitted that under proviso to Section 372 of
the Code of Criminal Procedure, since the victim has a right to prefer
an appeal against the order passed by the Court acquitting the accused
or convicting accused for lesser offence or imposing inadequate
compensation, such appeal shall lie to the Court to which the appeal
ordinarily lies against the order of conviction. In view of said proviso,
the learned Counsel prays that the matters be transferred to the
concerned District and Sessions Court for its disposal in accordance
with law.
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4. In this view of the matter and considering the observations
of the Supreme Court referred above, all the matters (applications and
appeals) are required to be transferred for their disposal to the
concern District Court, hence the following order.
ORDER
(1) The Applications/Appeals are transferred to the concerned District and Sessions Court, who shall after registering the matters, deal with the matter in accordance with law.
(2) Parties shall appear before the concerned District and Sessions Court, on 07.01.2026.
(3) If the non-applicants/respondents in any of these matters are not served or they are to be served, in that case the concerned District and Sessions Court shall issue notice to them and thereafter proceed further with the matter. (4) The concerned District and Sessions Court are also directed to take into consideration the matters wherein this Court has appointed Advocate from Legal Aid Panel, and if the said Advocate from the Legal Aid Panel is unable to attend or appear before the Court where the matter is transferred, in that eventuality, the District Court shall take necessary steps for appointing another Advocate from the Legal Aid panel for defending the non-applicants/ respondents.
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Order S138NI 7 (5) In case either of the parties remains absent after transfer of the matter to the District and Sessions Court, the concerned Court/ Judge shall issue notice to the concerned party/ies before proceeding with the matter. (6) All the concerned District and Sessions Court shall treat these matters as appeal under proviso to Section 372 of the Code as per the observations of the Supreme Court in case of Celestium Financial (supra). (7) Registrar (Judicial) of this Court to take further necessary action for transferring these matters to the concerned District and Sessions Court along with record and proceedings, (if any) immediately. (8) If the Record and Proceedings are received, the same shall be sent to the concerned District and Sessions Court along with appeal.
JUDGE Gohane Signed by: Mr. J. B. Gohane Designation:. PS To Honourable Judge Date: 10/12/2025 18:32:39