The High Court of Chhattisgarh, in a significant order, has permitted an appellant in a Section 138 Negotiable Instruments Act case to withdraw her appeal filed under Section 378(4) of the Code of Criminal Procedure (Cr.P.C.) and file a fresh appeal as a ‘victim’ under the proviso to Section 372 of the Cr.P.C. The decision, delivered by Justice Radhakishan Agrawal, relies on a recent Supreme Court judgment that clarifies the rights of a complainant in cheque dishonour cases.
The court allowed the appeal against acquittal to be withdrawn with liberty to approach the concerned Sessions Judge, directing that the issue of limitation not be a barrier if the new appeal is filed within 60 days.
Background of the Case
The matter originated from an acquittal appeal filed by Smt. Poonam Vyas against the judgment dated 21.12.2016 by the Judicial Magistrate First Class, Raipur. In the original complaint case (No. 97/13), the respondent, Kamal Kishore Vyas, was acquitted of charges under Section 138 of the Negotiable Instruments Act, 1881.
Smt. Vyas, the complainant, subsequently filed an acquittal appeal in the High Court under Section 378(4) of the Cr.P.C. The High Court granted leave to appeal on 01.03.2017.
Arguments of the Appellant
During the hearing on 15.09.2025, counsel for the appellant, Mr. Vijay Chawla, brought to the court’s attention a recent Supreme Court ruling in M/s. Celestium Financial Vs. A. Gnanasekaran Etc. (2025 INSC 804).
The counsel submitted that the Supreme Court had held that a complainant in a proceeding under Section 138 of the NI Act qualifies as a ‘victim’ as defined under Section 2(wa) of the Cr.P.C. Consequently, such a complainant is entitled to file an appeal against an acquittal under the proviso to Section 372 of the Cr.P.C.
The judgment cited key observations from the Supreme Court’s decision, stating:
“In the context of offences under the Act, particularly under Section 138 of the said Act, the complainant is clearly the aggrieved party who has suffered economic loss and injury due to the default in payment by the accused owing to the dishonour of the cheque… it would be just, reasonable and in consonance with the spirit of the CrPC to hold that the complainant under the Act also qualifies as a victim within the meaning of Section 2(wa) of the CrPC. Consequently, such a complainant ought to be extended the benefit of the proviso to Section 372, thereby enabling him to maintain an appeal against an order of acquittal in his own right without having to seek special leave under Section 378(4) of the CrPC.”
The Supreme Court further clarified the distinction, noting:
“…if a victim who is a complainant, proceeds under Section 378, the necessity of seeking special leave to appeal would arise but if a victim whether he is a complainant or not, files an appeal in terms of proviso to Section 372, then the mandate of seeking special leave to appeal would not arise at all.”
Based on this precedent, the appellant sought permission to withdraw the present appeal and file a fresh appeal before the concerned Sessions Judge under the proviso to Section 372 Cr.P.C. The counsel also prayed that the limitation period should not obstruct the consideration of the new appeal on its merits.
The respondent, Kamal Kishore Vyas, did not appear for the hearing despite having been served notice.
Court’s Analysis and Decision
After hearing the submissions and perusing the record, Justice Radhakishan Agrawal considered the arguments in light of the Supreme Court’s judgment.
The Court stated, “Considering the submissions made herein above and also in the light of judgment laid down by the Supreme Court referred to above, this Court is inclined to permit the appellant to withdraw this appeal by granting him liberty to prefer the appeal against the impugned judgment dated 21.12.2016 before the concerned Sessions Judge within a period of 60 days from the date of receipt of copy of this order.”
In its final order, the Court made it clear that the issue of limitation should not prevent the appeal from being heard on its merits. The order reads, “It is clarified that if such an appeal is filed before the concerned Session Judge within the time prescribed by this Court, it would not insist upon the limitation while deciding the same and will proceed to decide the same in accordance with law.”
The High Court directed its Registry to return the certified copy of the trial court’s judgment to the appellant. The appeal was accordingly disposed of as withdrawn, with the liberty granted to the appellant to pursue her remedy before the appropriate forum.
