M/s Harpreet Singh & sons M/s Harpreet Singh & sons v. Bir Parkash Malhotra Bir Parkash Malhotra
Case Details
IN THE HIGH COURT OF PUNJAB & HARYANA IN THE HIGH COURT OF PUNJAB & HARYANA IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH AT CHANDIGARH 235-6 CRM-A-1696 1696-MA-2018(O&M) Date of decision: 03.09.2025 Date of decision: M/s Harpreet Singh & sons M/s Harpreet Singh & sons ...Applicant(s) VERSUS Bir Parkash Malhotra Bir Parkash Malhotra ...Respondent(s)
Legal Reasoning
CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ HON'BLE MR. JUSTICE VINOD S. BHARDWAJ Present :- Ms. Bharti, Advocate, for the applicant(s). s. Bharti, Advocate, for the applicant(s). ***** VINOD S. BHARDWAJ, J. (Oral) VINOD S. BHARDWAJ 2018 CRM-29153-2018 s for condonation of delay of ayer in the present application is for condonation of delay of Prayer in the days in filing the application for leave to appeal. 994 days in filing the application for leave to appeal. days in filing the application for leave to appeal. For the reasons mentioned in the application, the same is For the reasons mentioned in the application, the same For the reasons mentioned in the application, the same allowed and delay of 994 days in filing application allowed and delay of 994 days in filing application for leave to appeal is condoned. Main case The present application has been preferred under The present application has been preferred under Section 378(4) of the Code of Criminal Procedure, 1973 (hereinafter ‘Cr of the Code of Criminal Procedure, 1973 (hereinafter ‘Cr.P.C.’) seeking grant of leave to appeal against the order dated grant of leave to appeal dated 17.07.2015 passed by the learned Judicial Magistrate First Class, Jalandhar learned Judicial Magistrate Jalandhar, in a case stemming from complaint No. NACT-30691-2013 filed under Section 138 of N complaint No. NACT filed under Section 138 of Negotiable Instruments Act, 1881, vide which the complaint filed by the applicant was Instruments Act, 1881, vide which the complaint filed by the applicant was Instruments Act, 1881, vide which the complaint filed by the applicant was for want of prosecution. dismissed for want of prosecution. 2. The complaint (supra) was filed on the ground of dishonour of The complaint (supra) was filed on th The complaint (supra) was filed on th SUMIT SINGH GUSAIN 2025.09.08 20:06 I attest to the accuracy and integrity of this document 235-6 CRM-A A-1696-MA-2018(O&M) 2 cheque of Rs.8,00,000/ ,00,000/-. The learned trial Court learned trial Court vide order dated 17.07.2015 has dismissed in default the complaint filed by the applicant for want of has dismissed in default the complaint filed by the applicant for want of has dismissed in default the complaint filed by the applicant for want of prosecution, which amounts to acquittal of the accused. prosecution, which amounts to acquittal of the accused. prosecution, which amounts to acquittal of the accused. 3. M/s. Celestium Financial vs. A. The Hon’ble Supreme Court in M/s. Celestium Financial vs. A. The Hon’ble Supreme 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 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 appeal under Sectio Cr.P.C., concluded that the victim has a right to file an appeal under Sectio 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 “7.12 The reasons for the above distinction are not far to The reasons for the above distinction are not far to see and can be elaborated as follows: see and can be elaborated as follows: see and can be elaborated as follows: Firstly, the victim of a crime must have an 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 prefer an appeal which cannot be circumscribed by any condition precedent. In the instant case, a victim under Section condition precedent. In the instant case, a victim under Section condition precedent. In the instant case, a victim under Section 138 of the Act, i.e., a payee or the holder of a cheque is a 138 of the Act, i.e., a payee or the holder of a cheque is a 138 of the Act, i.e., a payee or the holder of a cheque is a person who has suffered the impact of the offence committed by person who has suffered the impact of the offence committe person who has suffered the impact of the offence committe a person who is charged of the offence, namely, the accused, a person who is charged of the offence, namely, the accused, a person who is charged of the offence, namely, the accused, whose cheque has been dishonoured. whose cheque has been dishonoured. whose cheque has been dishonoured. , the right of a victim of a crime must be placed on par Secondly, the right of a victim of a crime must be placed on par Secondly with the right of an accused who has suffered a conviction, with the right of an accused who has suffered a conviction, with the right of an accused who has suffered a conviction, prefer an appeal under Section who, as a matter of right can prefer an appeal under Section who, as a matter of right can 374 of the Cr.P.C. A person convicted of a crime has the right 374 of the Cr.P.C. A person convicted of a crime has the right 374 of the Cr.P.C. A person convicted of a crime has the right to prefer an appeal under Section 374 as a matter of right and to prefer an appeal under Section 374 as a matter of right and to prefer an appeal under Section 374 as a matter of right and not being subjected to any conditions. Similarly, a victim of a not being subjected to any conditions. Similarly, a victim of a not being subjected to any conditions. Similarly, a victim of a crime, whatever be the nature of the crime, unconditionally crime, whatever be the nature of th crime, whatever be the nature of th SUMIT SINGH GUSAIN 2025.09.08 20:06 I attest to the accuracy and integrity of this document 235-6 CRM-A A-1696-MA-2018(O&M) 3 must have a right to prefer an appeal. must have a right to prefer an appeal. must have a right to prefer an appeal. , it is for this reason that the Parliament thought it fit to Thirdly, it is for this reason that the Parliament thought it fit to Thirdly section 372 without mandating any insert the proviso to sub-section 372 without mandating any insert the proviso to sub condition precedent to be fulfilled by the victim of an offence, condition precedent to be fulfilled by the victim of an offence condition precedent to be fulfilled by the victim of an offence which expression also includes the legal representatives of a which expression also includes the legal representatives of a which expression also includes the legal representatives of a deceased victim who can prefer an appeal. deceased victim who can prefer an appeal. 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, On the contrary, as against an order of acquittal, the State, through the Public Prosecutor can prefer an appeal even if the through the Public Prosecutor can prefer an appeal even if the through the Public Prosecutor can prefer an appeal even if the er such an appeal, though of course complainant does not prefer such an appeal, though of course complainant does not pref such an appeal is with the leave of the court. However, it is not such an appeal is with the leave of the court. However, it is not such an appeal is with the leave of the court. However, it is not always necessary for the State or a complainant to prefer an always necessary for the State or a complainant to prefer an always necessary for the State or a complainant to prefer an appeal. But when it comes to a victim’s right to prefer an appeal. But when it comes to a victim’s right to prefer an appeal. But when it comes to a victim’s right to prefer an special leave to appeal from appeal, the insistence on seeking special leave to appeal from appeal, the insistence on seeking the High Court under Section 378(4) of the Cr.P.C. would be the High Court under Section 378(4) of the Cr.P.C. would be the High Court under Section 378(4) of the Cr.P.C. would be contrary to what has been intended by the Parliament by contrary to what has been intended by the Parliament by contrary to what has been intended by the Parliament by insertion of the proviso to Section 372 of the Cr.P.C. insertion of the proviso to Section 372 of the Cr.P.C. insertion of the proviso to Section 372 of the Cr.P.C. , the Parliament has not amended Section 378 to Fourthly, the Parliament has not amended Section 378 to Fourthly circumscribe the victim’s right to prefer an appeal just as it has circumscribe the victim’s right to prefer an appeal just as it has circumscribe the victim’s right to prefer an appeal just as it has with regard to a complainant or the State filing an appeal. On with regard to a complainant or the State filing an appeal. On with regard to a complainant or the State filing an appeal. On the other hand, the Parliament has inserted the proviso to the other hand, the Parliament has inserted the proviso to the other hand, the Parliament has inserted the proviso to Section 372 so as to envisage a superior right for the victim of Section 372 so as to envisage a superior right for the victim of Section 372 so as to envisage a superior right for the victim of an offence to prefer an appeal on the grounds mentioned offence to prefer an appeal on the grounds mentioned therein as compared to a complainant. therein as compared to a complainant. therein as compared to a complainant. , the involvement of the State in respect of an offence Fifthly, the involvement of the State in respect of an offence Fifthly under Section 138 of the Act is conspicuous by its absence. This under Section 138 of the Act is conspicuous by its absence. This under Section 138 of the Act is conspicuous by its absence. This SUMIT SINGH GUSAIN 2025.09.08 20:06 I attest to the accuracy and integrity of this document 235-6 CRM-A A-1696-MA-2018(O&M) 4 is because the complaint filed under that provision is in the is because the complaint filed under is because the complaint filed under nature of a private complaint as per Section 200 of the Cr.P.C. nature of a private complaint as per Section nature of a private complaint as per Section and Section 143 of the Act by an express intention incorporates and Section 143 of the Act by an express intention incorporates and Section 143 of the Act by an express intention incorporates the provisions of the Cr.P.C. in the matter of trial of such a the provisions of the Cr.P.C. in the matter of trial of such a the provisions of the Cr.P.C. in the matter of trial of such a deemed offence tried as a criminal offence. Therefore, the deemed offence tried as a criminal offe deemed offence tried as a criminal offe complainant, who is the victim of a dishonour of cheque must complainant, who is the victim of a dishonour of cheque must complainant, who is the victim of a dishonour of cheque must be construed to be victim in terms of the proviso to Section 372 be construed to be victim in terms of the proviso to Section 372 be construed to be victim in terms of the proviso to Section 372 read with the definition of victim under Section 2(wa) of the read with the definition of victim under Section 2(wa) of the read with the definition of victim under Section 2(wa) of the Cr.P.C.” Cr.P.C.” 4. Therefore, in view of the judgment rendered by the Apex Court Therefore, in view of the judgment r Therefore, in view of the judgment r in Celestium Financial (supra) , the present application seeking leave to Celestium Financial (supra), the present application seeking leave to appeal is remanded remanded to the learned Sessions Judge, to the learned Sessions Judge, Jalandhar with a direction to treat the same as an appeal filed under Section 372 of the direction to treat the same as an appeal filed under Section 372 of the direction to treat the same as an appeal filed under Section 372 of the Cr.P.C. and entrust the same to appropriate Court for its disposal on merits Cr.P.C. and entrus t the same to appropriate Court for its disposal on merits. 5. The Registry is directed to send the complete paper-book and The Registry is directed to send the complete paper The Registry is directed to send the complete paper the record of the case to the learned Sessions Judge, Jalandhar forthwith. the record of the case to the learned Sessions Judge, the record of the case to the learned Sessions Judge, 6.
Decision
Disposed of accordingly. Pending miscellaneous applications, if Disposed of accordingly. Pending miscellaneous applica Disposed of accordingly. Pending miscellaneous applica any, also stand disposed of. any, also stand disposed of. 03.09.2025 Sumit Gusain (VINOD S. BHARDWAJ) (VINOD S. BHARDWAJ) JUDGE Whether speaking/reasoned : Whether speaking/reasoned : Whether reportable Whether reportable Yes/No Yes/No SUMIT SINGH GUSAIN 2025.09.08 20:06 I attest to the accuracy and integrity of this document