Punjab-Haryana High Court
Shiv Kumar vs Harish Kumar And Anr on 4 November, 2025
Author: Jasjit Singh Bedi
Bench: Jasjit Singh Bedi
CRM-A-523-MA-2017 1
1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
245 CRM-A-523-MA-2017
Date of Decision:-04.11.2025
SHIV KUMAR ......APPELLANT
VS.
HARISH KUMAR AND ANR. ......RESPONDENTS
CORAM:- HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present:- Mr. Manoj Kumar Pundir, Advocate
for the applicant-appellant.
***
JASJIT SINGH BEDI, J.(ORAL)
1. The present application has been preferred under Section 378(4)
of the Code of Criminal Procedure, 1973 (hereinafter 'CR.P.C.') seeking
grant of leave to appeal against the judgment of acquittal dated 10.01.2017
passed by the learned Judicial Magistrate Ist Class, Yamuna Nagar at
Jagadhri in a case stemming from complaint dated 30.10.2013 filed under
Section 138 of Negotiable Instruments Act, 1881 (hereinafter to be referred
as 'NI Act').
2. The complaint (supra) was filed on the ground of dishonour of
cheque amounting to Rs.1,70,000/-. After assessing all the material available
on the record, the learned trial Court acquitted the respondent vide judgment
dated 10.01.2017.
3. The Hon'ble Supreme Court in M/s. Celestium Financial vs. A.
Gnanasekaran Etc., 2025(3) RCR (Criminal) 208, after considerable
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
KUSUM 372 of Cr.P.C. before the Court of Sessions. Speaking through Justice B.V.
Nagarathna, the following was held:
"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 CrPC. A person convicted of a
crime has 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
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 CrPC
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 CrPC."
4. In view of the judgment rendered by the Hon'ble Supreme
Court in Celestium Financial (supra) and this Court in Satish Kumar vs.
Jugal Kishor in CRM-A-277-MA-2016 decided on 02.07.2025, the learned
Sessions Judge, Yamuna Nagar at Jagadhri 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 Court for its disposal on merits, expeditiously.
5. The Registry is directed to send the complete paperbook and the
record of the case to the learned Sessions Judge, Yamuna Nagar at Jagadhri
forthwith.
6. Disposed of accordingly.
7. Pending miscellaneous applications, if any, also stands disposed
of.
( JASJIT SINGH BEDI )
JUDGE
November 04, 2025
Kusum
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
