Page No.# 1/5 GAHC010160122025 undefined THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.A./130/2026 SRI HORESH GOGOI SON OF MINESWAR GOGOI, R/O MORAN, MILONPUR, P.O-MORANHAT, P.S- MORAN, DIBRUGARH, ASSAM PIN-785670 VERSUS THE STATE OF ASSAM AND ANR REPRESENTED BY PP ASSAM 2:SRI RAJU BORAH SON OF MONIRAM BORAH OUPHALIA CHARIALI P.S-TINGKHONG DIST-DIBRUGARH ASSAM PIN-78661 Advocate for the Petitioner : MR. JAGANNATH HATIMURIA, MR. N M DAS,MR. A PHUKAN,MR. J HATIMURIA,MR. M KALITA Advocate for the Respondent : PP, ASSAM, I L NGAMLAI(R2),MR. B BARUAH(R2) Page No.# 2/5 BEFORE HONOURABLE MR. JUSTICE MRIDUL KUMAR KALITA ORDER Date - 01.06.2026 1. Heard Mr. M. Kalita, the learned counsel appearing for the appellant. Also heard Mr. K. K. Baishya, the learned Additional Public Prosecutor for the State respondent. Mr. B. Baruah, the learned counsel appears for the respondent No. 2. 2. This appeal has been registered on filing of a memo of appeal under Section 413/419 (4) of BNSS, 2023, by the appellant, Shri Horesh Gogoi, impugning the judgment and order dated 22.04.2025 passed by the Court of the learned Judicial Magistrate First Class, Dibrugarh, Assam in the NI Case No. 139/2016 under Section 138 of the Negotiable Instrument Act, 1881, whereby the Trial Court acquitted respondent No.2 under Section 138 of the Negotiable Instrument Act, 1881. 3. Mr. B. Baruah, the learned counsel for the respondent No. 2 has raised a question of maintainability of the instant appeal, on the ground that this appeal has been directed against an order passed by the Court of the learned Judicial Magistrate First Class, Dibrugarh, Assam, hence, he submits that the appeal from such Court ordinarily lies before the Court of Sessions Judge, and the appellant even if he is regarded as a victim would have filed the appeal under proviso to Section 413 of BNSS, 2023 directly to the Court of Sessions Judge, Page No.# 3/5 Dibrugarh Assam. He submits that however, the appellant has directly approached this Court and filed the appeal here. 4. The learned counsel for the respondent No. 2 further submits that even if the appellant intent to treat this appeal under Section 419(4) of the BNSS, 2023, special leave to appeal was required for presenting such an appeal before the High Court directly, however, in the instant case no special leave to appeal under the said provision has been filed by the present appellant, he, therefore, submit that this appeal is not maintainable and is liable to dismiss on that ground. 5. On the other hand, the learned counsel for the appellant has submitted that the appellant, who was the complainant in NI Case No. No. 139/2016, is also a victim in the said case and as such, he can prefer an appeal against the said judgment without seeking any special leave for filing an appeal under proviso to Section 413 of the BNSS, 2023. In support of his submission he has cited the ruling of the Apex Court in the case of “M/s. Celestium Financial vs. A. Gnanasekaran” reported in 2025 INSC 804. 6. I have considered the submissions made by the learned counsel for both sides and have also gone through the materials available on record. I have also gone through the ruling cited by the learned counsel for the appellant in support of his respective submissions. 7. It is also pertinent to note that the judgment cited by the learned counsel for the appellant was in respect of the appeal filed under Section 378 (4)/372 of the Code of Criminal Procedure, 1973. Page No.# 4/5 8. It is also pertinent to mention herein that the provisions contained in Section 419 of the BNSS, 2023 are in pari materia with the proviso, which were there in Section 378 of the Code of Criminal Procedure, 1973, similarly, provision contained in 413 of BNSS, 2023 are also in pari materia with Section 372 of the Code of Criminal Procedure, 1973. 9. Though, the Apex Court in the aforesaid judgment has verified that if an appeal is preferred by victim under proviso to Section 372 of the Code of Criminal Procedure, 1973, no leave of the High Court is required. Similarly, applying the same principle in the instant case, if the appeal is preferred by the victim under Section proviso to 413 of BNSS, 2023, this Court is of the considered opinion that no leave from this Court would be required. However, such appeal shall lie to the Court in which an appeal ordinarily lie against the order of conviction of such Court, and as in the instant case, the impugned judgment was passed by the Court of the Judicial Magistrate First Class, hence, had the order of a conviction, the appeal would have lie before Court of Session under Section 415 (3) of BNSS, 2023 and as such, in the instant case, even under proviso to Section 413 of the BNSS, 2023, i.e., in case of appeal against acquittal, the same shall lie before Sessions Court only, and any such appeal before this Court would lie only if a special leave to appeal from such an order of acquittal is granted by the High Court under Section 419 (4) of the BNSS, 2023, and in this case, no such application for special leave has been preferred by the appellant, therefore, this Court is of the considered opinion that the instant appeal in the present form is not maintainable, and as such, this appeal is dismissed. Page No.# 5/5 10. However, the liberty is granted to the appellant to approach the appropriate forum by preferring the appeal against the judgment, which has been impugned in the instant appeal. 11. As regards question of limitation in preferring the said appeal before the appropriate forum by the present appellant is concerned, while deciding any such questions by the Court before which the appellant may be filing his appeal, shall be considered by the said court, taking into consideration the provisions contained in Section 14 of Limitation Act, 1963. 12. With the above observations, this appeal is, hereby, dismissed. JUDGE Comparing Assistant