1 2025:CGHC:34379 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 805 of 2019 Vansh Narayan Tiwari S/o Late Kailash Tiwari, Aged About 49 Years, Occupation- Advocacy and Agriculture, Presently Residing at Chopdapara, Ambikapur, District Surguja, Chhattisgarh., District : Surguja (Ambikapur) ... Appellant. versus Sitaram Alias Sitoram S/o Shri Bukhle Ram Aged About 58 Years Caste- Gond, Occupation- Agriculture, Resident Of Dhorpur, P.S. And Post- Dhorpur, District Surguja, Chhattisgarh. ... Respondent. For Appellant : Mr. Karunendra Pratap Singh, Adv on behalf of Mr. B. P. Sharma, Advocate. For Respondent : Mr. Nishi Kant Sinha, Advocate. SB : Hon'ble Shri Justice Deepak Kumar Tiwari Order on Board 21.07.2025 1. This acquittal appeal has been filed under Section 378 (4) of the Code of Criminal Procedure, 1973 (for short the "CrPC") challenging the judgment of acquittal dated 25.09.2019 passed by the Seventh Additional Sessions Judge, Ambikapur, District Surguja in Criminal Appeal No.54/2019 affirming the judgment dated 14.03.2019 passed by the Judicial Magistrate First Class, Ambikapur, District Surguja in Complaint Case No.327/2012, whereby, the respondent was acquitted of the charge under Section 138 of the Negotiable Instruments Act, 1881 (for short “the NI Act”). Digitally signed by AJAY KUMAR DWIVEDI DN: cn=AJAY KUMAR DWIVEDI, ou=HIGH COURT OF CHHATTISGARH, o=HIGH COURT OF CHHATTISGARH, st=CHATTISGARH, c=IN Date: 2025.07.21 16:54:42 +0530 2 2. At the outset learned counsel for the respondent submits that the appellant/complainant has already availed the remedy against the judgment acquittal of accused by filing an appeal under the proviso of Section 372 of CrPC before the Additional Sessions Judge. The said proviso clearly stipulates that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. Therefore, the acquittal appeal is not maintainable. 3. Learned counsel for the respondent also submits that recently in the case of Celestium Financial Vs. A. Gnanasekaran Etc., reported in 2025 SCC OnLine SC 1320, the central issue arose for adjudication was that whether an appeal would be maintainable under the proviso to Section 372 of the CrPC against an order of acquittal passed in a case instituted upon a private complaint under Section 138 of the NI Act by treating the complainant in such a proceeding as a victim within the meaning ascribed to the term under Section 2(wa) of the CrPC, and following was finally held at Para 10: "10. 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." 3 4. Learned counsel for the respondent also places reliance in the matter of Mamta Shah Vs. Gurdeep Singh decided by this Court in CRMP No.592/2019 (Order dated 11.03.2019), wherein, the issue came up for consideration that whether the complainant is victim as mentioned under Section 372 proviso of CrPC and following was observed by this Court at Para 3, 4 & 5:- 3. The only issue for consideration of this court is whether the complainant is victim as mentioned under Section 372 proviso of the Code of Criminal Procedure, 1973. 4. In the matter of “Mallikarjun Kodagali (Dead) through LRs. Versus State of Karnataka and Others” reported in AIR 2018 SC 5206, it is held by the Hon'ble Apex Court as under. 78. As far as the question of the grant of special leave is concerned, once again, we need not be overwhelmed by submissions made at the Bar. The language of the proviso to Section 372 of the Cr.P.C. is quite clear, particularly when it is contrasted with the language of Section 378(4) of the Cr.P.C. The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word ‘complaint’ has been defined in Section 2(d) of the Cr.P.C. and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR, and therefore it is not at all necessary to consider the effect of a victim being the complainant as far as the proviso to Section 372 of the Cr.P.C. is concerned. 5. As per law lay down the Hon'ble Apex Court in the matter of (Mallikarjun Kodgali (supra), the complainant of complaint case is also victim and, therefore, it is not at all necessary to consider the effect of a victim being the complainant. 5. Counsel for the respondent also submits that in the present case, in Criminal Appeal which was filed before the Additional Sessions Judge, counsel for the appellant therein had placed reliance in the matter of Dr. Pawan Kumar Tiwari Vs. State of Chattisgarh decided by this Court in CRR No.1105/2018 & other connected matter (Order dated 27.09.2019). In the said case the 4 Magistrate has awarded conviction and in appeal Additional Sessions Judge has reversed the same and the High Court held that against such an acquittal only appeal would be maintainable not revision. However, the fact of the present case is different in nature as in the present case the Magistrate has acquitted the accused and the Additional Sessions Judge has also affirmed the said acquittal, therefore, in the present form the appeal is not maintainable. 6. At this juncture, learned counsel for the appellant would not dispute the aforesaid legal propositions and seeks permission of this Court to withdraw the appeal with liberty to avail appropriate remedy in accordance with law. 7. Having regard to the aforesaid submissions and principle laid down by this Court as well as the Supreme Court on the judgments relied upon by the counsel, this Court is of the view that in the present form this acquittal appeal is not maintainable. Hence, the present appeal is disposed of reserving the liberty in favour of the appellant to avail appropriate remedy available to him in accordance with law. 8. Registry shall return the certified copy of the order/judgment and relevant documents to counsel for the appellant after retaining its photocopy. 9. Registry shall send back the record to the concerned Court. 10. Accordingly, the appeal is disposed of. Sd/- (Deepak Kumar Tiwari) Judge Ajay.