Sandeep Arora vs Vinod Bisen And Others

B. P. Sharma, J

Being aggrieved by the judgment dated 12-08-2017 passed in CrR No. 109/2014 passed by the 2nd Additional Sessions Judge, Waraseoni District Balaghat by which the Revisional Court has affirmed the order passed by the Judicial Magistrate First Class, Waraseoni District Balaghat vide order dated 19-04-2010 in Criminal Case No. 450/07 whereby the learned trial Court has dismissed the private complaint filed under Section 138 of the Negotiable Instruments Act for want of prosecution, against which petition has been filed.

Learned counsel for the petitioner submitted that the Revisional Court has erroneously dismissed the revision in spite of sufficient grounds available for non-appearance of the complainant on the date of hearing i.e. 19-04-2010.

Perused the record and impugned order.

It is well settled that whenever, complaint has been dismissed for want of prosecution, it is deemed to be acquittal under Section 256 of Cr.P.C and Revision/Appeal is not maintainable and the only option before the complainant is to file an application/petition under Section 378(4) of Cr.P.C seeking leave to appeal before this Court. The impugned order passed by the Revisional Court dated 12-08-2017 is clearly non-application of mind and against the provision of Section 378(4) of Cr.P.C. Therefore, the order passed by the Revisional Court dated 12-08-2017 is hereby set aside.

Aforesaid criminal case was instituted on the basis of private complaint filed by the victim/applicant.

The question before this Court is whether instant petition is covered under proviso to Section 413 of BNSS (Section 372 of Cr.P.C.).

The aforesaid issue is no longer res integra in light of the judgment of Hon'ble Apex Court in the case of Celestium Financial Vs. A. Gnanasekaran Etc., 2025 SCC Online SC 1320. The issue arose in said adjudication was whether an appeal would be maintainable under the proviso to Section 372 of the Code of Criminal Procedure, 1973 against an order of acquittal passed in a case instituted upon a private complaint under Section 138 of the Negotiable Instruments Act, 1881 by treating the complainant as a victim within the meaning prescribed under Section 2(wa) of the Cr.P.C.

It is observed by Hon’ble Apex Court in para 9 and 10 of Celestium Financial (supra) case 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 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.

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.”

Having regard to the law laid down in the aforesaid case as well as the factual matrix of the instant case, this Court is of the considered view that in the present appeal, appellant as a victim has a right to prefer an appeal under the proviso to Section 413 of the BNSS, 2023 (Section 372 of Cr.P.C., 1973) and he may proceed with accordingly and it is not at all needed to advert to sub section 4 of Section 419 of the BNSS, 2023 [378(4) of Cr.P.C., 1973]. Hence, liberty is reserved to the victim/appellant herein to file an appeal before the competent Court, having regard to the proviso to Section 413 of BNSS, 2023 (372 of Cr.P.C., 1973) within four months from today.

However, it is made clear that if appeal was filed before this Court within limitation or if appeal was not filed within limitation before this Court but issue of limitation has already been decided by this Court and the delay in filing the appeal has been condoned and appeal before concerned Sessions Court is filed within the period of four months from today, then, issue of limitation shall not be raised by respondent(s) or by the Appellate Court, but if appeal was not filed before this Court within limitation as prescribed in the Limitation Act or any application for condonation of delay is pending today, then, the issue of limitation/the same shall be decided by the Appellate Court in accordance with provisions of law.

Certified copy of documents, if any, filed by the victim/applicant in the instant petition, shall be returned back to victim/applicant after substituting photocopy of the same.

Record of the trial Court, if available, shall be sent back immediately to the concerned Court.

Petition filed by the applicant/victim is disposed of in term as above.