[Cites 10, Cited by 0]
Punjab-Haryana High Court
Abhishek Jain vs Vijay Kumar on 1 December, 2025
CRA-AS-164-2017 1
203
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-AS-164-2017 (O&M)
[arising out of CRM-A-888-MA-2017
Date of Decision: 01.12.2025
Abhishek Jain ....Appellant
VERSUS
Vijay Kumar ....Respondent
CORAM: HON'BLE MRS. JUSTICE SUKHVINDER KAUR
Present: Mr. Rajesh Gupta, Advocate
the appellant.
****
SUKHVINDER KAUR, J. (Oral)
Appellant had filed an application seeking grant of leave to
appeal against the judgment of acquittal dated 21.02.2017, passed by
learned Judicial Magistrate Ist Class, Karnal, in Complaint case bearing
No. 1755 of 2015, instituted on 07.07.2015, under Section 138 of the
Negotiable Instruments Act, 1881, titled as 'Abhishek Jain Vs. Vijay
Kumar', whereby the complaint filed by the Appellant herein was
dismissed by acquitting the accused. The said application was allowed by
the Co-ordinate Bench of this Court, vide order dated 25.09.2017.
Accordingly, appeal No. CRA-AS-164-2017, has been assigned to the
present case.
2. Today, the case was fixed for addressing arguments on the present
case. Learned counsel for the parties, while relying upon a judgment
passed by Hon'ble Supreme Court in M/s. Celestium Financial vs. A.
Gnanasekaran Etc., 2025(3) RCR (Criminal) 208, made the submission
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that the present appeal filed under Sections 372 of Cr.P.C. (which is pari
materia with Section 413 of Bharatiya Nagarik Suraksha Sanhita, 2023),
be sent to appropriate Court for its disposal.
3. Prior to judgment of Hon'ble Supreme Court in M/s.
Celestium Financial's case (supra), as per judgment in case M/s Tata Steel
Limited Vs. M/s Atma Tube Produced Limited, 2013(2), R.C.R (Criminal),
1005, rendered by Full Bench of this Court, a victim in a private complaint
case can challenge the judgment of acquittal by filing an appeal only
before the High Court, after seeking special leave to appeal under Section
378(4) of Cr.P.C. The Hon'ble Supreme Court in M/s. Celestium
Financial's case (supra) after comparative interpretation of under Section
372 of Cr.P.C. and Section 378(4) of Cr.P.C. observed that the victim has a
right to file an appeal under Section 372 of Cr.P.C. before the Court of
Sessions. The Hon'ble Supreme Court has observed as follows:
"7.12 The reasons for the above distinction are not far to see
and can be elaborated as follows: Firstly, the victim of a
crime must have an absolute right to prefer an appeal which
cannot be circumscribed by any 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 person who has suffered
the impact of the offence committed by a person who is
charged of the offence, namely, the accused, whose cheque
has been dishonoured. 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 Cr.P.C. A person convicted
of a crimehas the right to prefer an appeal under Section 374
as a matter of right and not being subjected 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 insert the proviso to sub-section 372 without mandating
any condition precedent to be fulfilled by the victim of an
offence, which expression also includes the legal
representatives of a deceased victim who can prefer an
appeal. On the contrary, as against an order of acquittal, the
State, through the Public Prosecutor can prefer an appeal
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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 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, the insistence on seeking
special leave to appeal from the High Court under Section
378(4) of the CrPC would be contrary to what has been
intended by the Parliament by insertion of the proviso to
Section 372 of the CrPC. Fourthly, the Parliament has not
amended Section 378 to 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 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 because the complaint filed under that
provision is in the nature of a private complaint as per
Section 200 of the CrPC 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
victim of a dishonour of cheque must 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 Cr.P.C."
4. A Co-ordinate Bench of this Court in Raj Kumar Vs. Rajender
in CRM-A-826 of 2025, decided on 07.07.2025 and Satish Kumar vs.
Jugal Kishore, CRM-A-2700-MA-2018, while relying upon M/s.
Celestium Financial's case (supra), has ordered to treat the application
seeking leave to file appeal as an appeal filed under Section 372 of Cr.P.C.
5. In the present case, in view of the judgment of Hon'ble
Supreme Court in M/s. Celestium Financial's case (supra), a direction is
given to learned Sessions Judge, Karnal to treat this appeal as filed under
Section 372 of Cr.P.C. He/she shall either decide the appeal himself/herself
or entrust the same to appropriate Court for its disposal.
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6. It is clarified that nothing has been observed regarding merits
of the case and it has been left open for the consideration of the Sessions
Court concerned to consider the merits of the appeal.
7. Learned counsel for the appellant, present in Court, directed to
inform the appellant for appearance before the Sessions Court, Karnal. The
parties are also directed to appear before the learned Sessions Judge,
Karnal in person or through his counsel on 12.01.2026.
8. The Registry is directed to send the complete paper-book and
record of the case to learned Sessions Judge, Karnal forthwith.
9. Disposed of.
10. Pending application(s), if any, shall also stand disposed of.
(SUKHVINDER KAUR)
01.12.2025 JUDGE
jyoti3
Whether reasoned/speaking: Yes/No
Whether reportable: Yes/No
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