SATENDER KUMAR v. RAJESH KUMAR AND ANOTHER
Case Details
CRM-A-634-2025 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 268 CRM-A-634-2025 (O&M) Date of decision : 17.07.2025 SATENDER KUMAR ... APPLICANT VERSUS RAJESH KUMAR AND ANOTHER .. RESPONDENTS
Legal Reasoning
CORAM : HON'BLE MR. JUSTICE H.S.GREWAL Present:- Mr. Harsh Manocha, Advocate for the applicant. *** H.S. Grewal, J.(Oral) CRM-15487-2025 This application has been filed under Section 5 of Limitation Act for condonation of delay of 60 days in filing the present appeal. In view of the grounds taken in the application, delay of 60 days in in filing the present appeal is condoned. Main application: 1. The present application has been preferred under Section 419(4) BNSS/ 378(3) Cr.P.C read with Section 413 BNSS/ 372 Cr.P.C seeking grant of leave to appeal of the judgment of acquittal dated 04.12.2024 passed by the learned Judicial Magistrate Ist Class, Hissar in the complaint case filed under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter ‘Act’). 2. The brief facts of the case are that the respondents, in order to discharge their liability, had issued cheque bearing No. 684313 dated 18.10.2018 amounting to Rs. 22,70,000/-/- drawn upon Punjab National Bank, Chandigarh Road Barwala (Hissar) which was dishonoured with the remarks Renu Rawat 2025.07.22 18.13 I attest to the accuracy and integrity of this document CRM-A-634-2025 (O&M) -2- ‘Cheque destroyed in the system’. Consequently, the complaint under Section 138 of Act was filed against the respondent which was dismissed by learned trial Court vide judgment dated 04.12.2024 and the accused was acquitted. Feeling aggrieved with the said finding, the present application seeking grant of leave to appeal has been preferred. 3. I have heard learned counsel for the applicant and have perused the material available on record. 4. Before proceeding to hear the application (for grant of special leave to appeal)/appeal, it is important to decide whether the right of the victim to file an appeal against acquittal in a complaint case would fall under Section 372 or Section 378(4) of Cr.P.C. 5. Hon’ble the Supreme Court in M/s Celestium Financial vs. A. Gnanasekaran Etc., 2025(3) RCR (Criminal) 208, had laid comprehensive interpretation of Sections 372 and 378(4) of Cr.P.C. and had concluded that the victim has a right to file an appeal under Section 372 of Cr.P.C. before the Court of Sessions. The relevant extract thereof is reproduced hereunder:- "7.12 xxxxxxx Secondly, the right of a victim of a crime must be placed on par with the right of an accused who has suffered a conviction, who, as a matter of right can prefer an appeal under Section 374 of the CrPC. A person convicted of a crime has the right to prefer an ap- peal under Section 374 as a matter of right and not being sub- jected to any conditions. Similarly, a victim of a crime, whatever be the nature of the crime, unconditionally must have a right to prefer an appeal. Thirdly, it is for this reason that the Parliament thought it fit to in- sert the proviso to sub-section 372 without mandating any condi- tion precedent to be fulfilled by the victim of an offence, which ex- Renu Rawat 2025.07.22 18.13 I attest to the accuracy and integrity of this document CRM-A-634-2025 (O&M) -3- pression also includes the legal representatives of a deceased vic- tim who can prefer an appeal. On the contrary, as against an order of acquittal, the State, through the Public Prosecutor can prefer an appeal even if the complainant does not prefer such an appeal, though of course such an appeal is with the leave of the court. However, it is not al- ways necessary for the State or a complainant to prefer an appeal. But when it comes to a victim's right to prefer an appeal, the insis- tence on seeking special leave to appeal from the High Court un- der Section 378(4) of the CrPC would be contrary to what has been intended by the Parliament by insertion of the proviso to Sec- tion 372 of the Cr.P.C. Fourthly, the Parliament has not amended Section 378 to circum- scribe the victim's right to prefer an appeal just as it has with re- gard to a complainant or the State filing an appeal. On the other hand, the Parliament has inserted the proviso to Section 372 so as to envisage a superior right for the victim of an offence to prefer an appeal on the grounds mentioned therein as compared to a complainant. Fifthly, the involvement of the State in respect of an offence under Section 138 of the Act is conspicuous by its absence. This is be- cause the complaint filed under that provision is in the nature of a private complaint as per Section 200 of the Cr.P.C. 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 deemed offence tried as a criminal offence. Therefore, the complainant, who is the vic- tim of a dishonour of cheque must be construed to be victim in terms of the proviso to Section 372 read with the definition of vic- tim under Section 2(wa) of the Cr.P.C. xxxxxxxxx 10. As already noted, the proviso to Section 372 of the Cr.P.C. 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 Renu Rawat 2025.07.22 18.13 I attest to the accuracy and integrity of this document CRM-A-634-2025 (O&M) -4- be given its full effect to by a court. In view of the aforesaid discus-
Decision
sion, we hold that the victim of an offence has the right to prefer an appeal under the proviso to Section 372 of the Cr.P.C., irre- spective of whether he is a complainant or not. Even if the victim of an offence is a complainant, he can still proceed under the pro- viso to Section 372 and need not advert to sub-section (4) of Sec- tion 378 of the Cr.P.C. " 6. In view of the judgment passed by the Hon'ble Supreme Court in Celestium Financial (supra) which has been followed by this Court in CRM- A-886-MA-2015, tilted as ‘Rajesh Kumar versus M/s Success Enterprises and another’, decided on 08.07.2025 and similar view taken by the Coordinate Bench of this Court in CRM-A-2700-MA-2018, tilted as ‘Satish Kumar vs. Jugal Kishor’ decided on 02.07.2025, the learned Sessions Judge, Hissar is directed to treat the present leave to appeal as an appeal filed under Section 372 of Cr.P.C. and entrust the same to appropriate Court for its disposal. 7. The Registry is directed to send the complete paper-book and the record of the case to the learned Sessions Judge, Hissar forthwith. 8. 9. 17.07.2025 renu Disposed of accordingly. Pending application(s), if any, shall also stand disposed of. (H.S.GREWAL) JUDGE Whether speaking/reasoned Whether reportable : : Yes/No Yes/No Renu Rawat 2025.07.22 18.13 I attest to the accuracy and integrity of this document