Ashok Sonaji Hembade Vs Madan Tulshiram Hembade and Another — Cheque Dishonour | Bombay HC (2025)

Ashok Sonaji Hembade Vs Madan Tulshiram Hembade and Another — Cheque Dishonour | Bombay HC (2025)

What the court decided

AI extract

Outcome

All the pending applications for leave to appeal were transferred to the concerned District and Sessions Courts; the learned Registrar (Judicial) of this Court was directed to take further necessary action for transferring these matters immediately; and the Courts to whom the matters would be assigned, after registering them, were to issue notice to the concerned parties, proceed further in accordance with law, and treat the matters as appeals under proviso to Section 372 of the Code of Criminal Procedure as per the observations of the Honourable Supreme Court in Celestium Financial (supra).

Issue for consideration

Whether the applicants, being complainants/victims of offences punishable under Section 138 NI Act who had sought leave under Section 378(4) CrPC to appeal against acquittal, can instead maintain their appeals under the proviso to Section 372 CrPC before the Court to which such appeals ordinarily lie, so that these leave applications should be transferred to the concerned District and Sessions Courts (common issue across the batch).

Court's answer

In view of the law laid down by the Honourable Supreme Court in Celestium Financial (supra), these applications for leave to appeal are required to be transferred for their disposal to the respective concerned District and Sessions Courts.

Ratio / Principle

The Courts to which the matters are assigned, after registering them and issuing notice to the concerned parties, shall treat these matters as appeals under the proviso to Section 372 of the Code of Criminal Procedure, as per the observations of the Honourable Supreme Court in Celestium Financial (supra), and proceed further in accordance with law.

Detailed headnote1 paragraphs

Bombay High Court (Bench at Aurangabad), Coram Sushil M. Ghodeswar, J. (Order dated 16 October 2025) - Common order disposing of a batch of twenty-five applications for leave to appeal by private parties (Serial Nos. 909, 910 and 927-949) under Section 378(4) of the Code of Criminal Procedure, filed by complainants/victims against judgments and orders of acquittal passed by learned Judicial Magistrates, First Class, in cases for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. Following the Honourable Supreme Court's decision in Celestium Financial Vs. Ganasekaran Etc., (2025) SCC OnLine SC 1320 - that a victim of a Section 138 NI Act offence, whether or not he is the complainant, has the right to prefer an appeal against acquittal under the proviso to Section 372 CrPC (inserted with effect from 31.12.2009) without seeking special leave to appeal under Section 378(4) - the Court ordered transfer of all these matters to the concerned District and Sessions Courts; the learned Registrar (Judicial) to effect the transfer immediately; and the transferee Courts, after registering the matters and issuing notice to the parties, to proceed in accordance with law and treat them as appeals under the proviso to Section 372 CrPC.

85.24alp

(1)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

909 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 85 OF 2024

RAMTARA TRADING CORPORATION THROUGH ITS PARTNER KALASH KULBHUSHAN AGRAWAL

VERSUS

YUVRAJ CONSTRUCTION THROUGH ITS PROPRIETOR YUVRAJ SHARAD MULAY AND ANOTHER

Mr V. A. Bagdiya, Advocate for Applicant

AND

910 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 86 OF 2024

RAMTARA TRADING CORPORATION THROUGH ITS PARTNER KALASH KULBHUSHAN AGRAWAL

VERSUS

YUVRAJ CONSTRUCTION THROUGH ITS PROPRIETOR YUVRAJ SHARAD MULAY AND ANOTHER

Mr V. A. Bagdiya, Advocate for Applicant

AND

927 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 223 OF 2018

DEVIDAS S/O DIGAMBARRAO JAMDADE

VERSUS

MAHAMATI D/O GAUTAMI HANKARE

Ms Smita R. Kasture, Advocate h/f Ms M. R. Jamdhade, Advocate for Applicant

Mr G. G. Suryawanshi, Advocate for Respondent

AND

85.24alp

(2)

928 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 46 OF 2022

SACHIN DNYANDEO PAWAR

VERSUS

SHIRISH SAMBHAJI SHINDE

Mr Z. H. Farooqui, Advocate h/f Mr N. V. Gaware, Advocate for Applicant

AND

929 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 59 OF 2022

VIJAY SAMBHAJI MUNGASE VERSUS

NANASAHEB MANOHAR VARUKSHE

Mr A. T. Kanawade and Ms S. A. Kanawade, Advocates for Applicant Mr G. P. Darandale, Advocate for Respondent

AND 930 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 73 OF 2022

RATAN BHANUDAS RANKHAMB

VERSUS

THE STATE OF MAHARASHTRA AND ANOTHER

Mr V. C. Solshe, Advocate for Applicant Mr D. B. Bhange, APP for Respondent No.1/State Mr Y. P. Jadhav, Advocate for Respondent No.2

AND

931 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 83 OF 2022

SANDEEP KADUBA DIVATE AND ANOTHER VERSUS

SHRI NARAYAN PRO. OF SHRI KRUSHNA MOBILES

Mr S. B. Kadu, Advocate for Applicants

85.24alp

(3)

AND

932 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 86 OF 2022

SHANKAR GOVIND BAMANWAD

VERSUS

GOVIND SONAJI WAD

Mr Vaibhav Dhage, Advocate for Applicant Mr P. B. Vikhe, Advocate for Respondent

AND

933 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 87 OF 2022

M/S. APURVA TRADERS, JINTUR ROAD, PARBHANI THROUGH ITS PROPRIETOR GOVIND LAXMANRAO MANE

VERSUS

KALYAN RAMRAO SABLE

Mr V. P. Kadam, Advocate for Applicant Mr P. N. Kalani, APP for Respondent

AND

934 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 90 OF 2022

SAVITA RAJENDRA BIRAJDAR AND ANOTHER

VERSUS

THE STATE OF MAHARASHTRA AND ANOTHER

Mr V. C. Solshe, Advocate for Applicants Mr G. O. Wattamwar, APP for Respondent No.1/State Mr H. V. Tungar, Advocate for Respondent No.2

AND

935 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 95 OF 2022

KAILAS RAJARAM PATIL

VERSUS

NARAYAN PUNDLIK PATIL AND ANOTHER

Mr S. B. Jadhav, APP for Respondent/State

85.24alp

(4)

AND 936 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 105 OF 2022 937 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 106 OF 2022 938 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 107 OF 2022 939 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 108 OF 2022 940 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 109 OF 2022 941 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 110 OF 2022 942 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 111 OF 2022 943 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 112 OF 2022 944 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 113 OF 2022

KAMALKUMAR MADANLAL JAIN (DECEASED) THROUGH LEGAL REPRESENTATIVE, RUPESH KAMALKUMAR JAIN

VERSUS

MANOJ DWARKADAS AGRAWAL

Ms Shital Pujari, Advocate h/f Mr Y. H. Jadhav, Advocate for respective Applicant Mr B. R. Kedar, Advocate for respective Respondent

AND

945 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 117 OF 2022

SHREE NARYAN MAHILA NAGARI SAHKARI PAT SANSTHA LTD. PARBHANI THROUGH BALAJI GANGADHAR CHAVAN VERSUS

JITENDRA PRABHAKAR DAHIWAL

Mr C. R. Thorat, Advocate for Applicant

Mr R. M. Gaikwad, Advocate h/f Mr P. M. Gaikwad, Advocate for Respondent

85.24alp

(5)

AND

946 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 4 OF 2024

ASHOK SONAJI HEMBADE

VERSUS

MADAN TULSHIRAM HEMBADE AND ANOTHER

Mr H. A. Shinde, Advocate h/f Mr V. R. Dhorde, Advocate for Applicant Mr R. N. Chavan, Advocate for Respondent No.1 Mr D. B. Bhange, APP for Respondent No.2/State

AND

947 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 5 OF 2024

DEVIDAS BABASAHEB KHATKE

VERSUS

SURESH BHANUDAS SANGULE

AND

948 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 9 OF 2024

YOGESHWAR NAGARI SAHAKARI PATSANTHA LTD THROUGH ITS AUTHORISED PERSON SANDIP VASANT BAVISKAR

VERSUS

SANJAY VASANT DEV

AND

949 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 10 OF 2024

RATAN BAJIRAO DAGLE

VERSUS

RAJENDRA NARAYAN HARDE

85.24alp

(6)

CORAM : SUSHIL M. GHODESWAR, J.

DATE : 16 OCTOBER 2025

P. C. :

Since common issue is involved in these matters, therefore, they are being decided by this common order.

By these applications under Section 378(4) of the Code of Criminal Procedure, the respective applicants/appellants pray for leave to file an appeal against judgment and order of acquittal passed by respective learned Judicial Magistrates, First Class, in respective cases for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

Insofar as the issue in respect of preferring an appeal under Section 372 of the Code of Criminal Procedure by the complainant/victim is concerned, the same was considered by the Honourable Supreme Court in the matter of Celestium Financial Vs. Ganasekaran Etc. [(2025) SCC OnLine SC 1320] , wherein, it has been held 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

85.24alp

(7)

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."

85.24alp

(8)

Considering the above position of law as laid down by the Honourable Supreme Court, learned advocates appearing in the matter for the 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, learned Advocates pray that these matters be transferred to the concerned District and Sessions Courts for their disposal in accordance with law.

In that view of the matter and considering the observations of the Honourable Supreme Court in Celestium Financial (supra) , these matters are required to be transferred for their disposal to the respective concerned District Courts. Hence, the following order :-

ORDER

(1) The present proceedings be transferred to the concerned District and Sessions Courts.

85.24alp

(9)

(2) Learned Registrar (Judicial) of this Court to take further necessary action for transferring these matters to the concerned District and Sessions Courts, immediately.

(3) Learned Courts to whom these matters would be assigned, after registering them, shall issue notice to the concerned parties, and thereafter, proceed further with the matters in accordance with law.

(4) The concerned Courts shall treat these matters as appeals under proviso to Section 372 of the Code of Criminal Procedure as per the observations of the Honourable Supreme Court in Celestium Financial (supra).

[SUSHIL M. GHODESWAR, J.]

sjk

Parties & counsel

AI extract

applicant
RAMTARA TRADING CORPORATION THROUGH ITS PARTNER KALASH KULBHUSHAN AGRAWAL¶¶5
Mr V. A. Bagdiya
respondent
YUVRAJ CONSTRUCTION THROUGH ITS PROPRIETOR YUVRAJ SHARAD MULAY AND ANOTHER¶¶7
applicant
DEVIDAS S/O DIGAMBARRAO JAMDADE¶¶17
Ms Smita R. Kasture
respondent
MAHAMATI D/O GAUTAMI HANKARE¶¶19
Mr G. G. Suryawanshi
applicant
SACHIN DNYANDEO PAWAR¶¶26
Mr Z. H. Farooqui
respondent
SHIRISH SAMBHAJI SHINDE¶¶28
applicant
VIJAY SAMBHAJI MUNGASE¶¶32
Mr A. T. Kanawade, Ms S. A. Kanawade
respondent
NANASAHEB MANOHAR VARUKSHE¶¶33
Mr G. P. Darandale
applicant
RATAN BHANUDAS RANKHAMB¶¶36
Mr V. C. Solshe
respondent
THE STATE OF MAHARASHTRA AND ANOTHER (Respondents in Appln. Ser. No. 930)¶¶38
Mr D. B. Bhange, Mr Y. P. Jadhav
applicant
SANDEEP KADUBA DIVATE AND ANOTHER¶¶42
Mr S. B. Kadu
respondent
SHRI NARAYAN PRO. OF SHRI KRUSHNA MOBILES¶¶43
applicant
SHANKAR GOVIND BAMANWAD¶¶49
Mr Vaibhav Dhage
respondent
GOVIND SONAJI WAD¶¶51
Mr P. B. Vikhe
applicant
M/S. APURVA TRADERS, JINTUR ROAD, PARBHANI THROUGH ITS PROPRIETOR GOVIND LAXMANRAO MANE¶¶55
Mr V. P. Kadam
respondent
KALYAN RAMRAO SABLE¶¶57
Mr P. N. Kalani
applicant
SAVITA RAJENDRA BIRAJDAR AND ANOTHER¶¶61
Mr V. C. Solshe
respondent
THE STATE OF MAHARASHTRA AND ANOTHER (Respondents in Appln. Ser. No. 934)¶¶63
Mr G. O. Wattamwar, Mr H. V. Tungar
applicant
KAILAS RAJARAM PATIL¶¶67
respondent
NARAYAN PUNDLIK PATIL AND ANOTHER¶¶69
Mr S. B. Jadhav
applicant
KAMALKUMAR MADANLAL JAIN (DECEASED) THROUGH LEGAL REPRESENTATIVE, RUPESH KAMALKUMAR JAIN¶¶74
Ms Shital Pujari
respondent
MANOJ DWARKADAS AGRAWAL¶¶76
Mr B. R. Kedar
applicant
SHREE NARYAN MAHILA NAGARI SAHKARI PAT SANSTHA LTD. PARBHANI THROUGH BALAJI GANGADHAR CHAVAN¶¶80
Mr C. R. Thorat
respondent
JITENDRA PRABHAKAR DAHIWAL¶¶81
Mr R. M. Gaikwad
applicant
ASHOK SONAJI HEMBADE¶¶88
Mr H. A. Shinde
respondent
MADAN TULSHIRAM HEMBADE AND ANOTHER¶¶90
Mr R. N. Chavan, Mr D. B. Bhange
applicant
DEVIDAS BABASAHEB KHATKE¶¶94
respondent
SURESH BHANUDAS SANGULE¶¶96
applicant
YOGESHWAR NAGARI SAHAKARI PATSANTHA LTD THROUGH ITS AUTHORISED PERSON SANDIP VASANT BAVISKAR¶¶99
respondent
SANJAY VASANT DEV¶¶101
applicant
RATAN BAJIRAO DAGLE¶¶104
respondent
RAJENDRA NARAYAN HARDE¶¶106

Coram

AI extract

SUSHIL M. GHODESWARauthor¶¶109