262 IN THE HIGH COURT OF PUNJAB AND HARYANA IN THE HIGH COURT OF v. STATE OF PUNJAB & ANR STATE OF PUNJAB & ANR CRM-A-1088-MA-2016
Case Details
262 IN THE HIGH COURT OF PUNJAB AND HARYANA IN THE HIGH COURT OF PUNJAB AND HARYANA IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH AT CHANDIGARH AVTAR SINGH AVTAR SINGH V/S STATE OF PUNJAB & ANR STATE OF PUNJAB & ANR CRM-A-1088-MA-2016 (O&M) CRM Date of decision: 21.07.2025 Date of decision: ...APPLICANT APPLICANT-APPELLANT ...RESPONDENT CORAM: HON’BLE MR. HARPREET SINGH BRAR HON’BLE MR. JUSTICE HARPREET SINGH BRAR Mr. Navraj Deep Singh, Advocate for the applicant-appellant. Mr. Navraj Deep Singh, Advocate for the applicant Present: Mr. Navraj Deep Singh, Advocate for the applicant Mr. Rishabh Singla, AAG, Punjab. Mr. Rishabh Singla, AAG, Punjab. Mr. Aazam Khan, Advocate and Mr. Aazam Khan, Advocate and Ritesh Pandey, Advocate for the respondent No.2. Mr. Ritesh Pandey, Advocate for the respondent No.2. Mr. **** HARPREET SINGH BRAR, J. (ORAL) HARPREET SINGH BRAR 1. The present application has been preferred under Section 378(4) The present application has been preferred under Section 378(4) The present application has been preferred under Section 378(4) of the Code of Criminal Procedure, 1973 (hereinafter ‘CR.P.C.’) seeking grant of the Code of Criminal Procedure, 1973 (hereinafter ‘CR.P.C.’) seeking grant of the Code of Criminal Procedure, 1973 (hereinafter ‘CR.P.C.’) seeking grant of leave to appeal against the judgment of acquittal dated of leave to appeal the judgment of acquittal dated 28.03.2016 passed by the learned Judicial Magistrate 1 learned Judicial Magistrate 1st Class, Batala Class, Batala in a case stemming from under Section 138 of Negotiable Instruments complaint dated 02.06.2014 filed under Section 138 of Negotiable Instruments complaint dated Act, 1881. 2. was filed on the ground of dishonour of The complaint(supra) was filed on the ground of dishonour of The complaint two cheques of the amount of of the amount of Rs.2,50,000/- and Rs.2,70,000/ and Rs.2,70,000/-. After assessing all the material available on the record, the learned trial Court acquitted the available on the record, the learned trial Court acquitted the respondents vide judgment dated vide judgment dated 28.03.2016. 3. M/s. Celestium Financial vs. A. The Hon’ble Supreme Court in M/s. Celestium Financial vs. A. The Hon’ble Supreme Court in Gnanasekaran Etc., 2025(3) RCR (Criminal) 208, after considerable Gnanasekaran Etc., 2025(3) RCR (Criminal) 208 Gnanasekaran Etc., 2025(3) RCR (Criminal) 208 discussion and comparative interpretation of Sections 372 and 378(4) of discussion and comparative interpretation of Sections 372 and 378(4) of discussion and comparative interpretation of Sections 372 and 378(4) of HIMANSHU 2025.07.24 09:48 I attest to the accuracy and integrity of this document CRM-A-1088-MA MA-2016 2 Cr.P.C., concluded that the victim has a right to file an appeal under Section Cr.P.C., concluded that the victim has a right to file an Cr.P.C., concluded that the victim has a right to file an 372 of Cr.P.C. before the Court of Sessions. Speaking through Justice B.V. 372 of Cr.P.C. before the Court of Sessions. Speaking through Justice B.V. 372 of Cr.P.C. before the Court of Sessions. Speaking through Justice B.V. Nagarathna, the following was held: Nagarathna, the following was held: “7.12 The reasons for the above distinction are not far to “7.12 The reasons for the above distinction are not far to see and can be elaborated as follows: see and can be elaborated as follows:
Facts
rime must have an absolute right to Firstly, the victim of a crime must have an absolute right to prefer an appeal which cannot be circumscribed by any prefer an appeal which cannot be circumscribed by any condition precedent. In the instant case, a victim under condition precedent. In the instant case, a victim under Section 138 of the Act, i.e., a payee or the holder of a Section 138 of the Act, i.e., a payee or the holder of a cheque is a person who has suffered the impact of the cheque is a person who has suffered the impact of th offence committed by a person who is charged of the offence committed by a person who is charged of the offence, namely, the accused, whose cheque has been offence, namely, the accused, whose cheque has been dishonoured. Secondly, the right of a victim of a crime must be placed on Secondly, the right of a victim of a crime must be placed on par with the right of an accused who has suffered a par with the right of an accused who has suffered a tter of right can prefer an appeal conviction, who, as a matter of right can prefer an appeal of the CrPC. A person convicted of a under Section 374 of the CrPC. A person convicted of a crime has the right to prefer an appeal under Section 374 crime has the right to prefer an appeal under Section 374 as a matter of right and not being subjected to any as a matter of right and not being subjected to any tions. Similarly, a victim of a crime, whatever be the conditions. Similarly, a victim of a crime, whatever be the nature of the crime, unconditionally must have a right to nature of the crime, unconditionally must have a right to prefer an appeal. Thirdly, it is for this reason that the Parliament thought it Thirdly, it is for this reason that the Parliament thought it fit to insert the proviso to sub-section 372 without fit to insert the proviso to sub any condition precedent to be fulfilled by the mandating any condition precedent to be fulfilled by the victim of an offence, which expression also includes the victim of an offence, which expression also includes the legal representatives of a deceased victim who can prefer legal representatives of a deceased victim who can prefer an appeal. On the contrary, as against an order of acquittal, the State, On the contrary, as against an order of acquittal, the State, osecutor can prefer an appeal even if through the Public Prosecutor can prefer an appeal even if the complainant does not prefer such an appeal, though of the complainant does not prefer such an appeal, though of course such an appeal is with the leave of the court . course such an appeal is with the leave of the However, it is not always necessary for the State or a However, it is not always necessary for the State or a HIMANSHU 2025.07.24 09:48 I attest to the accuracy and integrity of this document CRM-A-1088-MA MA-2016 3 complainant to prefer an appeal. But when it comes to a complainant to prefer an appeal. But when it comes victim's right to prefer an appeal, the insistence on seeking victim's right to prefer an appeal, the insistence on seeking special special leave leave to appeal to appeal from from the High Court under the High (4) of the CrPC would be contrary to what has Section 378(4) of the CrPC would be contrary to what has been intended by the Parliament by insertion of the proviso been intended by the Parliamen to Section 372 of the CrPC. Fourthly, the Parliament has not amended Section 378 to Fourthly, the Parliament has not amended Section 378 to circumscribe the victim's right to prefer an appeal just as it circumscribe the victim's right to prefer an appeal just as it has with regard to a complainant or the State filing an has with regard to a complai appeal. On the other hand, the Parliament has inserted the appeal. On the other hand, the Parliament has inserted the proviso to Section 372 so as to envisage a superior right proviso to Section 372 so as to envisage a superior right for the victim of an offence to prefer an appeal on the for the victim of an offence to prefer an appeal on the grounds mentioned therein as compared to a complainant. grounds mentioned therein as compared to a complainant. Fifthly, the involvement of the State in respect of an offence Fifthly, the involvement of the State in respect of an offence under Section 138 of the Act is conspicuous by its absence. under Section 138 of the Act is conspicuous by its absence. This is because the complaint filed under that provision is This is because the complaint filed under that provision is in the nature of a private complaint as per Section 200 of in the nature of a private complaint as per Section the CrPC and Section 143 of the Act by an express the CrPC and Section 143 of the Act by an express intention incorporates the provisions of the CrPC in the intention incorporates the provisions of the CrPC in the matter of trial of such a deemed offence tried as a criminal matter of trial of such a deemed offence tried as a criminal offence. Therefore, the complainant, who is the victim of a offence. Therefore, the complainant, who is the vi dishonour of cheque must be construed to be victim in dishonour of cheque must be construed to be victim in terms of the proviso to Section 372 read with the definition terms of the proviso to Section 372 read with the definition of victim under Section 2(wa) of the CrPC.” of victim under Section 2(wa) of the CrPC.” 4. Further still, applying the doctrine of prospective overruling, a Further still, applying the doctrine of prospective overruling, a Further still, applying the doctrine of prospective overruling, a two Judge bench of the Hon’ble Supreme Court in Directorate of Revenue two Judge bench of the Hon’ble Supreme Court in two Judge bench of the Hon’ble Supreme Court in Criminal Appeal No. 1319 Of 2013 with Intelligence vs. Raj Kumar Arora in Criminal Appeal No. 1319 Of 2013 with Intelligence vs. Raj Kumar Arora Criminal Appeal No. 272 of 2014 decided on 17.04.2025 Criminal Appeal No. 272 of 2014 decided on 17.04.2025 has clarified that as a rule of thumb, judgments shall be applicable retrospectively. Speaking a rule of thumb, judgments shall be applicable retrospectively. Speaking a rule of thumb, judgments shall be applicable retrospectively. Speaking through Justice J.B. Pardiwala, the following was opined: through Justice J.B. Pardiwala, the following was opined: through Justice J.B. Pardiwala, the following was opined: HIMANSHU 2025.07.24 09:48 I attest to the accuracy and integrity of this document CRM-A-1088-MA MA-2016 4 “91. The declaration of a statute dealing with substantive “91. The declaration of a statute dealing with substantive rights, by the legislature, is considered to be prospective rights, by the legislature, is co unless it is expressly or by necessary implication made to unless it is expressly or by necessary implication made to have retrospective operation. The legal maxim "Nova have retrospective operation. The legal maxim "Nova Constitutio Futuris Forman Constitutio Futuris Forman Imponere Debet, Non Imponere Debet, Non Praeteritis" indicating that a new law ought to regulate Praeteritis" indicating that a new law ought to regulate low and not the past, carries with it a what is to follow and not the past, carries with it a presumption of prospectivity and this presumption is presumption of prospectivity and this presumption is generally said to operate unless the contrary is shown by generally said to operate unless the contrary is shown by an express provision in the statute or if the retrospectivity an express provision in the statute or if the retrospectivity is otherwise discernible through necessary implication.This is otherwise discernible through necessary is because such statutes would have the consequence of is because such statutes would have the consequence of affecting vested rights, impose new burdens or impair affecting vested rights, impose new burdens or impair existing obligations. However, when a decision rendering existing obligations. However, when a decision rendering an opinion as regards the interpretation of a penal an opinion as regards the interpretation of a penal ntly overruled by the decision of a provision is subsequently overruled by the decision of a larger bench, the consequence of the overruling is starkly larger bench, the consequence of the overruling is starkly different and by default, retrospective. This is because it is different and by default, retrospective. settled settled law law that that the the law declared by law declared by this Court is this retrospective and is normally assumed to be the law from retrospective and is normally assumed to be the the inception. 92. The operation of a newly enacted statute or rule must 92. The operation of a newly enacted statute or rule must not be confused with the effect of a judgment. A judgement not be confused with the effect of a judgment. or decision which interprets a statute or provision thereof or decision which interprets a statute or provision thereof declares the meaning of the statute as it should be declares the meaning of the statute as it should be nstrued from the date of its enactment. In other words, construed from the date of its enactment. In other words, the judgment declares what the legislature had said at the the judgment declares what the legislature had said at the time when the law was promulgated and therefore, it has time when the law was promulgated and therefore, it has On the contrary, it is the statute or the retrospective effect. On the contrary, it is the statute or the d to be prospective unless expressly rule which is presumed to be prospective unless expressly made retrospective. What follows from the same, is that a made retrospective. What follows from the same, is that a decision or judgment enunciating a principle of law is decision or judgment enunciating a principle of law is applicable to all cases irrespective of the stage of pendency applicable to all cases irrespective of the stage of pendency before different forums since what has been enunciated is before different forums since what has been HIMANSHU 2025.07.24 09:48 I attest to the accuracy and integrity of this document CRM-A-1088-MA MA-2016 5 the meaning of the law which existed from the inception of the meaning of the law which existed from the inception of the concerned statute or provision. What has been declared the concerned statute or provision. What has been declared to be the law of the land must be held to have always been to be the law of the land must be held to have always been the law of the land. This conclusion also stems from the the law of the land. This conclusion also stems from the rationale that the duty of the e that the duty of the court is not to "pronounce a new new law but law but to maintain and expound to maintain and expound the old the old one". (emphasis added) Reliance in this regard can also be placed on the judgment Reliance in this regard can also be placed on the judgment Reliance in this regard can also be placed on the judgment rendered by a Co-ordinate bench of this Court in rendered by a Co ordinate bench of this Court in Raj Kumar vs. Rajender 2025 decided on 07.07.2025. CRM-A-826-2025 decided on 07.07.2025. 5. Therefore, in view of the judgments rendered by the Hon’ble Therefore, in view of the judgments rendered by the Hon’ble Therefore, in view of the judgments rendered by the Hon’ble Supreme Court in Celestium Financial (supra) Supreme Court in (supra) and Directorate of Revenue
Legal Reasoning
Intelligence (supra) as well as this Court in Satish Kumar Intelligence (supra) as well as this Court in Satish Kumar vs. Jugal Kishor in CRM-A-2700 2018 decided on 02.07.2025, the learned Sessions 2700-MA-2018 decided on 02.07.2025, the learned Sessions Judge, Gurdaspur is directed to treat the present leave to appeal as an appeal Gurdaspur is directed to treat the present leave to appeal as an appeal filed under Section 372 of the Cr.P.C. and entrust the same to appropriate filed under Section 372 of the Cr.P.C. and entrust the same to appropriate filed under Section 372 of the Cr.P.C. and entrust the same to appropriate Court for its disposal on merits. Court for its disposal 6. The Registry is directed to send the complete paper-book and the The Registry is directed to send the complete paper The Registry is directed to send the complete paper record of the case to the learned Sessions Judge, Gurdaspur, forthwith. record of the case to the learned Sessions Judge, record of the case to the learned Sessions Judge, 7.
Decision
Disposed of, accordingly. Pending miscellaneous applications, if Disposed of, accordingly. Pending miscellaneous applications, if Disposed of, accordingly. Pending miscellaneous applications, if any, also stand disposed of. any, also stand disposed of. 21.07.2025 himanshu HARPREET SINGH BRAR) (HARPREET SINGH BRAR JUDGE (i) Whether speaking/reasoned (ii) Whether reportable Yes/No Yes/No HIMANSHU 2025.07.24 09:48 I attest to the accuracy and integrity of this document