Buldhana Urban Co. Operative Credit Society Ltd. Gajanan Sushashrao Zalte Vs the State of Maharashtra

By this application under Section 378(4) of the Code of Criminal Procedure, the applicant/Credit Society prays for leave to file an appeal against judgment and order of acquittal dated 05/03/2024, passed by the learned Judicial Magistrate, First Class, Sillod, District Aurangabad in S.C.C. No.100066 of 2013 for offence punishable under Section 138 of the Negotiable Instruments Act.

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So far as the issue in respect of preferring Appeal under Section 372 of the Code of Criminal Procedure by the complainant/victim is concerned, the same was considered by the Hon’ble Supreme Court in the matter of Celestium Financial Vs.

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49.24appln for leave (2)

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Ganasekaran Etc. [(2025) SCC OnLine SC 1320] , wherein the Supreme Court has held as under :-

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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.

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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

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49.24appln for leave

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(3)

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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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3. Considering the above position of law as laid down by the Hon’ble Supreme Court, the learned Advocate appearing in the matter for applicant/appellant 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 Advocate prays that this matter be transferred to the concerned District and Sessions Court for its disposal in accordance with law.

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In that view of the matter and considering the observations of the Hon’ble Supreme Court referred above, this matter is required to be transferred for its disposal to the concern District Court. Hence, the following order :-

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49.24appln for leave (4)

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ORDER

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(1) The present proceeding be transferred to the concerned District and Sessions Court. Learned Registrar (Judicial) of this Court to take further necessary action for transferring this matter to the concerned District and Sessions Court, immediately.

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(2) The learned Trial Court to whom this matter will be assigned, after registering it, shall issue notice to the concerned parties, and thereafter, proceed further with the matter in accordance with law.

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(3) The concerned Court shall treat this matter as an appeal under proviso to Section 372 of the Code of Criminal Procedure as per the observations of the Hon’ble Supreme Court in case of Celestium Financial (supra).

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[SUSHIL M. GHODESWAR, J.]

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sjk

Buldhana Urban Co. Operative Credit Society Ltd. Gajanan Sushashrao Zalte v. the State of Maharashtra

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Buldhana Urban Co. Operative Credit Society Ltd. Gajanan Sushashrao Zalte v. the State of Maharashtra

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