Mr. Nithin Kumar Vs Mrs. Afiya Banu

REP BY HIS GPA HOLDER DR B.NISHAKANTHA SHETTY AGED 73 YEARS S/O LATE NAGANNA SHETTY R/AT REGENCY LA MAJADA ROSA 13D, HENNUR MAIN ROAD V.T.C BENGALURU NORTH KALYAN NAGAR POST BENGALURU - 560043

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…APPELLANT

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(BY SRI. SURESH KUMAR S.,ADVOCATE)

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AND:

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MRS. AFIYA BANU W/O MR. ABDUL AZEEM AGED 27 YEARS R/AT NO.201, 2^ND FLOOR, VISHWAS SAHARA HEIGHTS NEAR ROSARIO SCHOOL

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HC-KAR

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PANDESHWARA POST MANGALURU - 575 001

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…RESPONDENT

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THIS CRIMINAL APPEAL IS FILED UNDER SECTION 378(4) CR.P.C PRAYING TO SET ASIDE THE IMPUGNED ORDER DATED 09.11.2022 PASSED BY THE V JMFC, MANGALORE IN C.C.NO.1460/2015 ACTING U/S 255(1) OF CRPC ACQUITTING THE RESPONDENT FOR THE OFFENCE P/U/S 138 OF N.I ACT, PUNISH THE RESPONDENT IN ACCORDANCE WITH LAW AND FURTHER GRANT COMPENSATION TO THE APPELLANT.

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THIS APPEAL, COMING ON FOR HEARING - INTERLOCUTORY APPLICATION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE G BASAVARAJA

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ORAL JUDGMENT

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This appeal is filed by the appellant/ complainant being aggrieved by the judgment of acquittal dated 09.11.2022 passed in C.C No.1460/2015 by the JMFC (V Court), Mangaluru, D.K (for short "the trial Court")

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HC-KAR

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The Hon'ble Supreme Court in the case of CELESTIUM FINANCIAL v. A GNANASEKARAN ETC. reported in 2025 SCC ONLINE SC 1320, at paragraph 10 of the judgment, has observed as under:

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" 10. As already noted, the proviso to Section 372 of Cr.P.C. was inserted in the statue 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 Cr. P.C., 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 Cr. P.C. "

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In the light of the Hon'ble Supreme Court's recent clarification of the legal position, it is now evident that the appellant, being the complainant under Section 138 of Negotiable Instruments Act, 1881, is also entitled to file an appeal against the judgment of acquittal passed

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HC-KAR

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by the trial Court before the Sessions Court, since he is considered to be a victim. If this Court were to proceed to hear and decide the appeal at this stage, it could deprive the parties of an available forum, i.e. this Court, for further challenge.

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Similar view has been taken by the High Court of Andhra Pradesh in CHARBEL INDIA V. STATE OF ANDHRA PRADESH reported in 2025 SCC ONLINE AP 2815; by the High Court of Madhya Pradesh in MANORAMA KANKANE v. NARENDRA KUMAR SHUKLA rendered in Criminal Appeal No.5910 of 2025 decided on 03^rd July, 2025; and in the case of LATE KISAN SEWA KENDRA v. PRITAM SINGH reported in 2025 SCC ONLINE MP 4818; and in SMT. URMIT MADRAH v. SAMARPAN JAIN rendered Criminal Appeal No. 11872 of 2022 decided on 21^st July, 2025; the decision of High Court of Chattisgarh in NEELAM SAHU v. NARADNAGWANSHI rendered in ACQA No. 340 of 2018 decided on 16^th July, 2025; and in SMT. KIRTI KURIAN v. AJAY SINGH rendered in ACQA No. 198 of 2019

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HC-KAR

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decided on 16^th July, 2025; the judgment of this Court in the case of SIDAGONDAPPA v. SHAFI AHAMAD rendered in CRL.A. No. 20021/2018 decided on 31^st July, 2025 and in SRI T.H. LENKAPPA v. SRI SANJAY AND ANOTHER rendered in Criminal Appeal No.146 of 2015 decided on 23^rd July, 2025; the decision of High Court of Delhi in the case of D.K. ASSOCIATES v. SHANKAR AND ANOTHER rendered in Criminal Appeal No.694 of 2016 decided on 13^th November, 2025 and the decision rendered by the Coordinate Bench of this Court in the case of M/S. ANANYA ENTERPRISES v. SRI G.S. GOPALAKRISHNA rendered in Criminal Appeal No.100171 of 2016 decided on 24^th November, 2025. An overall assessment of the aforestated decisions reveals that the decision of the Hon'ble Supreme Court in the case of CELESTIUM FINANCIAL (supra) has been relied upon by this Court, as well as other High Courts across the country.

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Considering the above, it is deemed fit that the present appeal be transferred to the concerned appellate

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HC-KAR

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Court of Sessions and be considered as an appeal under the proviso to Section 413 of BNSS, 2023 (formerly Section 372 of Cr.P.C) and numbered accordingly. Accordingly, I proceed to pass the following:

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O R D E R

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i. Registry is directed to transfer the entire record of the case, including the requisitioned copies of the trial court Records, to the concerned Principal District & Sessions Judge, who may assign it to the concerned Appellate Court having the jurisdiction and for which purpose, it would be listed before the Principal District & Sessions Judge;

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ii. The concerned transferee court is directed to issue Court notice to both the parties to appear before the concerned Court, and the concerned Court, thereafter, shall proceed with the case in accordance with law;

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iii. In case there are applications pending for condonation of delay or any other pending

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NC: 2026:KHC:2981 CRL.A No. 2217 of 2022

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HC-KAR

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applications, the same also be transferred to be considered by the learned Judge of transferee Court, in accordance with law;

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iv. Considering the matter has been pending for considerable time, the Appellate Court is requested to make an endeavour to dispose of the matter as expeditiously as possible;

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v. The appellant is permitted to carry out necessary amendment in the cause-title and also the provisions thereof;

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vi. It is made clear that this Court has not made any observations as to the merits of the case and all rights and contentions of the parties are left open to be agitated before the Court concerned.

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In the light of the above observation and

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directions, appeal stands disposed of .

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Sd/(G BASAVARAJA) JUDGE

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TKN

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List No.: 2 Sl No.: 2

Mr. Nithin Kumar v. Mrs. Afiya Banu

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Mr. Nithin Kumar v. Mrs. Afiya Banu

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