Neutral Citation No. - 2025:AHC:90976 Court No. - 73 Case :- APPLICATION U/S 528 BNSS No. - 18275 of 2025 (Leading) Applicant :- Naveen Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anubhav Sinha Counsel for Opposite Party :- G.A. and Case :- APPLICATION U/S 528 BNSS No. - 18294 of 2025 (Connected) Applicant :- Rajeev Kumar Opposite Party :- State of U.P. and Another Counsel for Applicant :- Anubhav Sinha Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J. 1. Heard Sri Anubhav Sinha, learned counsel for the applicants and Sri Indrajeet Singh Yadav, the learned A.G.A. 2. Since common questions of law are involved in the present applications, they are being decided by a composite order. 3. The case set out in the leading application is that a complaint was lodged by the applicant against O.P. No.2 on 04.12.2019 with relation to dishonouring of a cheque of an amount of Rs.5,00,000/- bearing number "000018" dated 30.09.2019 on 05.10.2019. Thereafter the O.P. No.2 was summoned and post-recording of their statement, under Section 251 and 313 of CrPC, the O.P. No.2 has been acquitted on 18.02.2025 by the Court of Presiding Officer, Special Court, 138 N.I. Act, Gautam Budh Nagar in proceeding in Complaint Case No. 700 of 2024. 5. As regards the connected application is concerned, a complaint was lodged by the applicant against O.P. No.2 with respect to dishonouring of two cheques, one of Rs.35,00,000/- and second is of Rs.10,00,000/-. The O.P. No.2 was summoned and thereafter post-recording of the statement under Section 251 and 313 of CrPC, the O.P. No.2 was acquitted by the Court of Special Court, 138 N.I. Act, Gautam Budh Nagar in proceeding in Complaint Case No. 701 of 2024. 6. Questioning the order acquitting the O.P. No.2, the present applications have been filed. 7. Learned State Law Officer has made a preliminary objection regarding maintainability of the present proceeding while submitting that the applicants have a remedy to prefer an appeal under Section 372 read with Sub-Section (4) and (5) of Section 378 of CrPC. (corresponding provisions 413 and 419 of BNSS). Reliance has been placed upon a larger Bench decision in Application u/s 582 No. 3171 of 2016, Anil Kumar Agarwal vs. State of U.P. decided on 25.02.2020. 8. On being confronted, learned counsel for the applicants could not dispute the said legal position. According to him, liberty be accorded to the applicants to file an appeal. 9. I have heard learned counsel for the applicants and perused the records carefully. 10. In Anil Kumar Agarwal (supra), following questions were posed:- "1. The questions referred to this Bench for opinion are as follows: (i) Whether against acquittal order in a criminal complaint case under Section 138 Negotiable Instruments Act, the victim, who is complainant also, may prefer appeal before the Sessions Judge taking recourse to the proviso to Section 372 Cr.P.C. or the said appeal shall lie before the High Court under the said provisions. (ii) Whether against the same judgment and order of acquittal in a complaint case, in a situation when victim and complainant both are different persons, victim may file appeal under the proviso to Section 372 CrPC before the Sessions Judge or such appeal shall lie before the High Court ?" 11. The reference was answered:- "41. Thus, in view of the aforesaid discussion, our answers to the questions referred to us are as follows :- (a). We are of the firm opinion that the appeal by a 'victim' who is a complainant also against the order of acquittal in a criminal complaint case under 138 of Negotiable Instrument Act would lie to the High Court under proviso to Section 372 read with Sub-section (4) & (5) of Section 378 CrPC. (b). Against the same judgment and order of acquittal in a complaint case, in a situation where victim and complainant both are different persons, appeal by a victim would lie under the proviso to 372 CrPC read with Section 378 (4) (5) CrPC only before the High Court." 12. In view of the fact that the applicants have an alternative efficacious remedy of preferring an appeal, the present applications are consigned to record granting liberty to the applicants to avail the remedy as provided in the Statute. Order Date :- 28.5.2025 N.S.Rathour (Vikas Budhwar, J) Digitally signed by :- NIPENDRA SINGH RATHOUR High Court of Judicature at Allahabad