Alisha Deshwal v. Nawal Singh
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 217 CRM-A-1817 1817-2019 (O&M) Date of decision: 05.09.2025 Date of decision: Alisha Deshwal ...Applicant VERSUS Nawal Singh ...Respondent CORAM : HON'BLE MR. JUSTICE VINOD S. BHARDWAJ HON'BLE MR. JUSTICE VINOD S. BHARDWAJ
Legal Reasoning
Ms. Sneha, Advocate as Legal Aid Counsel, Present :- Ms. Sneha, Advocate as Legal Aid Counsel, Ms. Sneha, Advocate as Legal Aid Counsel, for the applicant. for the applicant. ***** VINOD S. BHARDWAJ, J. (Oral) VINOD S. BHARDWAJ 2019 CRM-23531-2019 is for condonation of delay of 362 Prayer in the application is for condonation of delay of 362 Prayer in the application days in filing the application for leave to appeal. 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, th For the reasons mentioned in the application, th allowed and delay of 362 days in filing the application allowed and delay of 362 days in filing the application for leave to appeal is condoned. Main case The present application has been preferred under Section The present application has been preferred under Section The present application has been preferred under Section 378(4) of the Code of Criminal Procedure, 1973 (hereinafter ‘CR.P.C.’) 378(4) of the Code of Criminal Procedure, 1973 (hereinafter ‘CR.P.C.’) 378(4) of the Code of Criminal Procedure, 1973 (hereinafter ‘CR.P.C.’) the judgment of acquittal dated seeking grant of leave to appeal against the judgment of acquittal dated seeking grant of leave to appeal 05.03.2018 passed by the learned J passed by the learned Judicial Magistrate udicial Magistrate First Class, Faridabad stemming out from complaint dated 09.05.2016/05.05.2017 stemming out from complaint dated 09.05.2016/05.05.2017 filed under Section 138 of Negotiable Instruments Act, 1881. Section 138 of Negotiable Instruments Act, 1881. Section 138 of Negotiable Instruments Act, 1881. 2. It is noticed that the instant application pertains to the year It is noticed that the instant appl It is noticed that the instant appl 2019, however, no one has entered appearance on behalf of the applicant(s), , however, no one has entered appearance on behalf of the applicant(s), hence, it is deemed expedient to nominate a Legal Aid Counsel, Ms. Sneha, hence, it is deemed expedient to nominate a Legal Aid Counsel, hence, it is deemed expedient to nominate a Legal Aid Counsel, SUMIT SINGH GUSAIN 2025.09.09 16:14 I attest to the accuracy and integrity of this document 217 CRM-A-1817-2019 (O&M) CRM 2 Advocate, who is present in the Court, is appointed as the Legal Aid Counsel Advocate, who is present in the Court, is appointed as the Legal Aid Counsel Advocate, who is present in the Court, is appointed as the Legal Aid Counsel to represent the case on behalf of applicant(s) to arrive at a to represent the case on behalf of to arrive at a decision. She has gone through the case file and submits that the present application has been gone through the case file and submits that the present application has been gone through the case file and submits that the present application has been filed against the judgment of acquittal dated 05.03.2018 passed by the filed against the judgment of acquittal dated filed against the judgment of acquittal dated Judicial Magistrate 1st Class, Faridabad, in criminal Judicial Magistrate 1st Class, criminal complaint No.RBT-953 under Section 138 of Negotiable Instruments Act, 1881. She under Section 138 of Negotiable Instruments Act, 1881 of 2016 filed under Section 138 of Negotiable Instruments Act, 1881 fairly submits that in view of the judgment passed by the Hon’ble Supreme fairly submits that in view of the judgment passed by the Hon’ble Supreme fairly submits that in view of the judgment passed by the Hon’ble Supreme M/s. Celestium Financial vs. A. Gnanasekaran Etc., 2025(3) RCR Court in M/s. Celestium Financial vs. A. Gnanasekaran Etc., 2025(3) RCR M/s. Celestium Financial vs. A. Gnanasekaran Etc., 2025(3) RCR (Criminal) 208, , the applicant would have a reme the applicant would have a remedy before the Court of Sessions. 3. 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 cheque of Rs.70 . After assessing all the material available on the 70,00,000/-. After assessing all the material available on the record, the learned trial Court acquitted the respondent(s) vide judgment record, the learned trial Court acquitted the respondent(s) vide judgment record, the learned trial Court acquitted the respondent(s) vide judgment 18. dated 05.03.2018. 4. 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 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 fil Cr.P.C., concluded that the victim has a right to fil 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: , the victim of a crime must have an absolute right to Firstly, the victim of a crime must have an absolute right to Firstly 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 SUMIT SINGH GUSAIN 2025.09.09 16:14 I attest to the accuracy and integrity of this document 217 CRM-A-1817-2019 (O&M) CRM 3 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 ed the impact of the offence committed by person who has suffered the impact of the offence committed by person who has suffer 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 convi with the right of an accused who has suffered a convi who, as a matter of right can prefer an appeal under Section who, as a matter of right can prefer an appeal under Section who, as a matter of right can prefer an appeal under Section 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 not being subjected to any conditions. Similarly, a victim of crime, whatever be the nature of the crime, unconditionally crime, whatever be the nature of the crime, unconditionally crime, whatever be the nature of the crime, unconditionally 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 fulfilled by the victim of an offence, condition precedent to be fulfilled by the victim of an offence, condition precedent to be 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 through the Public Prosecutor can prefer an appeal complainant does not prefer such an appeal, though of course complainant does not prefer such an appeal, though of course complainant does not prefer such an appeal, though of course 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 appeal. But when it comes to a victim’s right to prefer SUMIT SINGH GUSAIN 2025.09.09 16:14 I attest to the accuracy and integrity of this document 217 CRM-A-1817-2019 (O&M) CRM 4 appeal, the insistence on seeking special leave to appeal from appeal, the insistence on seeking special leave to appeal from appeal, the insistence on seeking special leave to appeal from 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. ament 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 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 an offence to prefer an appeal on the grounds mentioned an offence to prefer an appeal on the grounds mentioned an 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 is because the complaint filed under that provision is in the is because the complaint filed under that provision is in the is because the complaint filed under that provision is in the 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 emed offence tried as a criminal offence. Therefore, the deemed offence tried as a criminal offence. Therefore, the emed offence tried as a criminal offence. Therefore, the 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.” 5. erefore, in view of the judgment rendered by the Apex Court Therefore, in view of the judgment rendered by the Apex Court erefore, in view of the judgment rendered by the Apex Court in Celestium Financial (supra) , the present application seeking leave to Celestium Financial (supra), the present application seeking leave to SUMIT SINGH GUSAIN 2025.09.09 16:14 I attest to the accuracy and integrity of this document 217 CRM-A-1817-2019 (O&M) CRM 5 appeal is remanded remanded to the learned Sessions Judge, to the learned Sessions Judge, Faridabad 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 entrust the same to appropriate Court for its disposal on merits. Cr.P.C. and entrust the same to appropriate Court for its disposal on merits. 6. 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, the record of the case to the learned Sessions Judge, Faridabad forthwith. 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. 8. A copy of this order be sent to the High Court Legal Service A copy of this order be sent to the High Court Legal Service A copy of this order be sent to the High Court Legal Service Committee for information and necessary action. Committee for information and necessary action. Committee for information and necessary action. 05.09.2025 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 2025.09.09 16:14 I attest to the accuracy and integrity of this document