Ashosk Das Vs Tanmaya Ku.Biswal

Heard learned counsel for the Petitioner as well as learned counsel appearing for the informant-Opposite Party. Perused the application as well as the prayer made therein.

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The present application has been filed under Section 378(4) of the Cr.P.C. by the complainant against an order of acquittal dated 27.07.2009 passed by the learned J.M.F.C., Rourkela in 1.C.C. No.574 of 2008 which corresponds to T.R. No.1490 of 2008.

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The abovenoted 1.C.C. case was registered on the basis of a complaint alleging commission of an offence punishable under Section 138 of the N.I. Act. During the trial the accused persons were summoned and they faced trial. Eventually, the learned trial court has delivered the judgment of acquittal against the accusedOpposite party. Being aggrieved by such order the complainant has

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approached this Court by filing the present application under the provision of Section 378(4) of the Cr.P.C. seeking leave to prefer an appeal.

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In course of argument, learned counsel for the Petitioner, drawing attention to the judgment of the Hon’ble Supreme Court in Celestium Financial vs. Gnanasekaran Etc. reported in (2025) SCC Online SC 1320, contended that right of the complainant to prefer an appeal under the proviso to Section 372 of Cr.P.C. has been recognised by the Hon’ble Apex Court in the aforesaid judgment. In such view of the matter, learned counsel for the Petitioner contended that the Petitioner is permitted to prefer an appeal under the proviso to Section 372 of Cr.P.C.

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On perusal of the judgment of the Hon’ble Supreme Court in Celestium Financial’s case ( Supra ), this Court observed that the Hon’ble Supreme Court has equated the complainant with the victim as has been described in the proviso to Section 372 of Cr.P.C. Accordingly, the right of the complainant to prefer an appeal under the proviso to Section 372 has been recognised by the Hon’ble Supreme Court and the complainant was granted liberty to prefer an appeal against the judgment of acquittal under the proviso to Section 372 of the Cr.P.C. In the aforesaid context, it would be profitable to refer to the relevant portion of the judgment. Para-9 & Para-10 of the judgment are quoted herein below:-

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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

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cheque which has been dishonoured, in terms of the proviso to Section 372 of the Cr.P.C., 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 Cr.P.C., 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 Cr.P.C. 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 Cr.P.C.

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10. As already noted, the proviso to Section 372 of the Cr.P.C. 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 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 the Cr.P.C.”

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In view of the aforesaid conclusion of the Hon’ble Supreme

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Court in Celestium Financial’s case ( supra ), this Court is of the view that the complainant can very prefer an appeal under the proviso to Section 372 Cr.P.C. before the Appellate Court instead of seeking leave of this Court under Section 378(4) of the Cr.P.C. Learned counsel appearing for the opposite party does not dispute the aforesaid legal position. However, learned counsel for the Opposite party-accused raised a question with regard to the limitation.

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Considering such submissions made by learned counsels appearing for both sides, keeping in view the law laid down by the Hon’ble Supreme Court in Celestium Financial’s case ( supra ), this Court disposes of the leave application by granting liberty to the Petitioner to prefer an appeal under the proviso to Section 372 Cr.P.C. within a period of four weeks from today along with an application for condonation of delay. In such eventuality, the learned trial court shall consider the application for condonation of delay by taking a lenient view.

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