Shankar Govind Bamanwad v. Govind Sonaji Wad

(1)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD 909 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 85 OF 2024 RAMTARA TRADING CORPORATION THROUGH ITS PARTNER KALASH KULBHUSHAN AGRAWAL YUVRAJ CONSTRUCTION THROUGH ITS PROPRIETOR YUVRAJ SHARAD MULAY AND ANOTHER Mr V. A. Bagdiya, Advocate for Applicant 910 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 86 OF 2024 RAMTARA TRADING CORPORATION THROUGH ITS PARTNER KALASH KULBHUSHAN AGRAWAL YUVRAJ CONSTRUCTION THROUGH ITS PROPRIETOR YUVRAJ SHARAD MULAY AND ANOTHER Mr V. A. Bagdiya, Advocate for Applicant 927 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 223 OF 2018 DEVIDAS S/O DIGAMBARRAO JAMDADE MAHAMATI D/O GAUTAMI HANKARE Ms Smita R. Kasture, Advocate h/f Ms M. R. Jamdhade, Advocate for Applicant Mr G. G. Suryawanshi, Advocate for Respondent

(2) 928 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 46 OF 2022 SACHIN DNYANDEO PAWAR SHIRISH SAMBHAJI SHINDE Mr Z. H. Farooqui, Advocate h/f Mr N. V. Gaware, Advocate for Applicant 929 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 59 OF 2022 VIJAY SAMBHAJI MUNGASE NANASAHEB MANOHAR VARUKSHE Mr A. T. Kanawade and Ms S. A. Kanawade, Advocates for Applicant Mr G. P. Darandale, Advocate for Respondent 930 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 73 OF 2022 RATAN BHANUDAS RANKHAMB THE STATE OF MAHARASHTRA AND ANOTHER Mr V. C. Solshe, Advocate for Applicant Mr D. B. Bhange, APP for Respondent No.1/State Mr Y. P. Jadhav, Advocate for Respondent No.2 931 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 83 OF 2022 SANDEEP KADUBA DIVATE AND ANOTHER SHRI NARAYAN PRO. OF SHRI KRUSHNA MOBILES Mr S. B. Kadu, Advocate for Applicants

(3) 932 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 86 OF 2022 SHANKAR GOVIND BAMANWAD GOVIND SONAJI WAD Mr Vaibhav Dhage, Advocate for Applicant Mr P. B. Vikhe, Advocate for Respondent 933 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 87 OF 2022 M/S. APURVA TRADERS, JINTUR ROAD, PARBHANI THROUGH ITS PROPRIETOR GOVIND LAXMANRAO MANE KALYAN RAMRAO SABLE Mr V. P. Kadam, Advocate for Applicant Mr P. N. Kalani, APP for Respondent 934 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 90 OF 2022 SAVITA RAJENDRA BIRAJDAR AND ANOTHER THE STATE OF MAHARASHTRA AND ANOTHER Mr V. C. Solshe, Advocate for Applicants Mr G. O. Wattamwar, APP for Respondent No.1/State Mr H. V. Tungar, Advocate for Respondent No.2 935 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 95 OF 2022 KAILAS RAJARAM PATIL NARAYAN PUNDLIK PATIL AND ANOTHER Mr S. B. Jadhav, APP for Respondent/State

(4) 936 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 105 OF 2022 937 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 106 OF 2022 938 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 107 OF 2022 939 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 108 OF 2022 940 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 109 OF 2022 941 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 110 OF 2022 942 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 111 OF 2022 943 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 112 OF 2022 944 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 113 OF 2022 KAMALKUMAR MADANLAL JAIN (DECEASED) THROUGH LEGAL REPRESENTATIVE, RUPESH KAMALKUMAR JAIN MANOJ DWARKADAS AGRAWAL Ms Shital Pujari, Advocate h/f Mr Y. H. Jadhav, Advocate for respective Applicant Mr B. R. Kedar, Advocate for respective Respondent 945 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 117 OF 2022 SHREE NARYAN MAHILA NAGARI SAHKARI PAT SANSTHA LTD. PARBHANI THROUGH BALAJI GANGADHAR CHAVAN JITENDRA PRABHAKAR DAHIWAL Mr C. R. Thorat, Advocate for Applicant Mr R. M. Gaikwad, Advocate h/f Mr P. M. Gaikwad, Advocate for Respondent

(5) 946 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 4 OF 2024 ASHOK SONAJI HEMBADE MADAN TULSHIRAM HEMBADE AND ANOTHER Mr H. A. Shinde, Advocate h/f Mr V. R. Dhorde, Advocate for Applicant Mr R. N. Chavan, Advocate for Respondent No.1 Mr D. B. Bhange, APP for Respondent No.2/State 947 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 5 OF 2024 DEVIDAS BABASAHEB KHATKE SURESH BHANUDAS SANGULE 948 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 9 OF 2024 YOGESHWAR NAGARI SAHAKARI PATSANTHA LTD THROUGH ITS AUTHORISED PERSON SANDIP VASANT BAVISKAR SANJAY VASANT DEV 949 APPLN. FOR LEAVE TO APPEAL BY PVT. PARTY NO. 10 OF 2024 RATAN BAJIRAO DAGLE RAJENDRA NARAYAN HARDE

(6) CORAM : SUSHIL M. GHODESWAR, J.

DATE : 16 OCTOBER 2025 P. C. :

1.

Since common issue is involved in these matters, therefore, they are being decided by this common order. 2.

By these applications under Section 378(4) of the Code of Criminal Procedure, the respective applicants/appellants pray for leave to file an appeal against judgment and order of acquittal passed by respective learned Judicial Magistrates, First Class, in respective cases for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881.

3.

Insofar as the issue in respect of preferring an appeal under Section 372 of the Code of Criminal Procedure by the complainant/victim is concerned, the same was considered by the Honourable Supreme Court in the matter of Celestium Financial Vs. Ganasekaran Etc. [(2025) SCC OnLine SC 1320], wherein, it has been held as under :- "9.

In the circumstances, we find that Section 138 of the Act being in the nature of a penal provision by a deeming fiction against an accused who is said to have committed an offence under the said provision, if acquitted, can be proceeded against

(7) by a victim of the said offence, namely, the person who is entitled to the proceeds of a cheque which has been dishonoured, in terms of the proviso to Section 372 of the CrPC, as a victim. As already noted, a victim of an offence could also be a complainant. In such a case, an appeal can be preferred either under the proviso to Section 372 or under Section 378 by such a victim. In the absence of the proviso to Section 372, a victim of an offence could not have filed an appeal as such, unless he was also a complainant, in which event he could maintain an appeal if special leave to appeal had been granted by the High Court and if no such special leave was granted then his appeal would not be maintainable at all.

On the other hand, if the victim of an offence, who may or may not be the complainant, proceeds under the proviso to Section 372 of the CrPC, then in our view, such a victim need not seek special leave to appeal from the High Court. In other words, the victim of an offence would have the right to prefer an appeal, inter alia, against an order of acquittal in terms of the proviso to Section 372 without seeking any special leave to appeal from the High Court only on the grounds mentioned therein. A person who is a complainant under Section 200 of the CrPC who complains about the offence committed by a person who is charged as an accused under Section 138 of the Act, thus has the right to prefer an appeal as a victim under the proviso to Section 372 of the CrPC.

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."

(8) 4.

Considering the above position of law as laid down by the Honourable Supreme Court, learned advocates appearing in the matter for the applicants/appellants submitted that under proviso to Section 372 of the Code of Criminal Procedure, since the victim has a right to prefer an appeal against the order passed by the Court acquitting the accused or convicting accused for lesser offence or imposing inadequate compensation, such appeal shall lie to the Court to which the appeal ordinarily lies against the order of conviction. In view of said proviso, learned Advocates pray that these matters be transferred to the concerned District and Sessions Courts for their disposal in accordance with law.

5.

In that view of the matter and considering the observations of the Honourable Supreme Court in Celestium Financial (supra), these matters are required to be transferred for their disposal to the respective concerned District Courts. Hence, the following order :-

ORDER

(1) The present proceedings be transferred to the concerned District and Sessions Courts.

(9) (2) Learned Registrar (Judicial) of this Court to take further necessary action for transferring these matters to the concerned District and Sessions Courts, immediately.

(3) Learned Courts to whom these matters would be assigned, after registering them, shall issue notice to the concerned parties, and thereafter, proceed further with the matters in accordance with law.

(4) The concerned Courts shall treat these matters as appeals under proviso to Section 372 of the Code of Criminal Procedure as per the observations of the Honourable Supreme Court in Celestium Financial (supra).

[SUSHIL M. GHODESWAR, J.] sjk