1 2026:CGHC:2313 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR ACQA No. 229 of 2018 Sunil Kumar Agrawal S/o Shri Bajrang Lal Agrawal, Aged About 44 Years, R/o Banaras Chowk, Ambikapur, Police Station Gandhinagar, Tahsil Ambikapur, District : Surguja (Ambikapur), Chhattisgarh, ... Appellant versus Dharmendra Kushwaha @ Gudda S/o Shri Nathni Kushwaha, Aged About 37 Years, R/o Village Kharvat, Post Baikunthpur, Police Station And Tahsil Baikunthpur, District : Koriya (Baikunthpur), Chhattisgarh, ... Respondent For Appellant : Mr. Rahul K. Mishra, Advocate For Respondent : Mr. Anil Gulati, Advocate Hon'ble Shri Justice Radhakishan Agrawal Order on Board 14/01/2026 1. This is an acquittal appeal filed under Section 378(4) of the Cr.P.C. by the complainant/appellant against the order dated 15.11.2016 passed by the 4th Additional Sessions Judge, Surguja, (C.G.) in Case No.49/2016, whereby the learned 4th Additional Sessions Judge, dismissed the appeal as not maintainable as the appellant has remedy to approach the High Court to file the appeal with special leave under Section 378 (4) of the Cr.P.C., arising out of the order dated 26.08.2016 passed by the Judicial Magistrate First Class, Ambikapur (Surguja), in Complaint Case No.1338/2015, in which the learned JMFC has acquitted the respondent/accused of the charge under Section PRAKASH KUMAR Digitally signed by PRAKASH KUMAR Date: 2026.01.14 16:47:28 +0530 2 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the “Act of 1881”). Along with this appeal, an application under section 378(4) of the Cr.P.C. for grant of leave to appeal against the impugned order was also filed and the said application was allowed by this Court on 20.06.2018. 2. Learned counsel for the appellant/complainant submits that since the learned 4th Additional Sessions Judge has not decided the appeal on merits, but held the appeal being not maintainable, therefore, he prays for withdrawal of this appeal to file afresh before the concerned Sessions Court. He further submits that though leave to appeal under Section 378(4) of the Cr.P.C. has been granted by this Court on 20.06.2018, but recently, the Supreme Court in the matter of M/s. Celestium Financial Vs. A. Gnanasekaran Etc. reported in 2025 INSC 804 held that the complainant in a complaint filed under section 138 of the Act of 1881 is also a victim as defined in Section 2(wa) of Cr.P.C. corresponding to Section 2(y) of Bhartiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as the “BNSS”). He submits that the Supreme Court has further held that the complainant in a complaint under section 138 of the Act of 1881 can also be entitled to file an appeal under proviso to section 372 Cr.P.C. corresponding to Section 413 of the BNSS. 3. Learned counsel for the appellant submits that the Supreme Court in the aforesaid case has reserved the liberty in favour of the petitioner therein to prefer an appeal in the light of the provisions of Section 372 of the Cr.P.C, and therefore, in this case also the appellant may be permitted to withdraw this appeal with liberty to prefer an appeal before the concerned Session Judge under Section proviso to 372 Cr.P.C. corresponding to Section 413 of BNSS. He further submits that the limitation may not come in the way while deciding the appeal on its own merits. 4. Learned counsel for the respondent does not oppose the submission made 3 by the learned counsel for the Appellant. 5. Heard learned counsel for the parties. 6. 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 order dated 26.08.2016 before the concerned Sessions Judge within a period of 60 days from the date of receipt of copy of this order. Order accordingly. 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. 7. In that view of the matter, Registry is directed to return the certified copy of the impugned order after obtaining the attested photocopy of the same. 8. The record of the case be sent back to the concerned Court forthwith. 9. In view of the above, the present appeal stands disposed of. Sd/- (Radhakishan Agrawal) Judge Prakash