Biru Vs Narpat Singh

Th e present appeal has been prefe r red under Section 378(4) of the Code of C r iminal Procedure, 1973 (herei n after ‘Cr.P.C.’) against the judgment of a c quittal dated 27.09.2022 pas s ed by the learned Judicial Magistrate Fir s t Class, Gurugram stemming out from complaint dated 03.10.2017 file d under Sections 138, 141 and 1 4 2 of Negotiable Instruments Act, 1881.

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Th e complaint (supra) was filed o n the ground of dishonour of cheque of Rs.1 , 70,000/-. After assessing all t h e material available on the record, the lea r ned trial Court acquitted the r espondent(s) vide judgment dated 27.09.2022. 3. Th e 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 S ections 372 and 378(4) of Cr.P.C., conclu d ed that the victim has a right t o file an appeal under Section 372 of Cr.P.C. b efore the Court of Sessions. S p eaking through Justice B.V. Nagarathna, the following was held:

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224 CR A -AS-256-2023 (O&M)

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“ 7.12 The reasons for the above distinction are not far to se e and can be elaborated as follo w s:

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Firstly , the victim of a crime mu s t have an absolute right to pr ef er an appeal which cannot be circumscribed by any co n dition precedent. In the instant case, a victim under Section 13 8 of the Act, i.e., a payee or t he holder of a cheque is a pe r son who has suffered the impact of the offence committed by a p erson who is charged of the o f fence, namely, the accused, wh o se cheque has been dishonour e d. Secondly , the right of a victim of a crime must be placed on par wit h the right of an accused wh o has suffered a conviction, wh o , as a matter of right can pr ef er an appeal under Section 37 4 of the Cr.P.C. A person convi c ted of a crime has the right to p refer an appeal under Section 374 as a matter of right and no t being subjected to any condit i ons. Similarly, a victim of a cri m e, whatever be the nature o f the crime, unconditionally mu s t have a right to prefer an app e al.

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Thirdly , it is for this reason that t h e Parliament thought it fit to ins e rt the proviso to sub-section 372 without mandating any co n dition precedent to be fulfilled by the victim of an offence, wh i ch expression also includes t h e legal representatives of a de c eased victim who can prefer an appeal. On the contrary, as against an o rder of acquittal, the State, thr o ugh the Public Prosecutor can prefer an appeal even if the

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224 CR A -AS-256-2023 (O&M)

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co m plainant does not prefer such an appeal, though of course su c h an appeal is with the leave o f the court. However, it is not al w ays necessary for the State or a complainant to prefer an ap p eal. But when it comes to a victim’s right to prefer an ap p eal, the insistence on seeking s pecial leave to appeal from the High Court under Section 37 8 (4) of the Cr.P.C. would be co n trary to what has been inte n ded by the Parliament by ins e rtion of the proviso to Section 3 72 of the Cr.P.C. Fourthly , the Parliament has n o t amended Section 378 to cir c umscribe the victim’s right to p refer an appeal just as it has wit h regard to a complainant or t h e State filing an appeal. On the other hand, the Parliament h as inserted the proviso to Se c tion 372 so as to envisage a su p erior right for the victim of an offence to prefer an appeal on the grounds mentioned the r ein as compared to a complain a nt. Fifthly , the involvement of the St a te in respect of an offence un d er Section 138 of the Act is con s picuous by its absence. This is b ecause the complaint filed u n der that provision is in the na t ure of a private complaint as p e r Section 200 of the Cr.P.C. an d Section 143 of the Act by an e x press intention incorporates the provisions of the Cr.P.C. in t h e matter of trial of such a de e med offence tried as a crim i nal offence. Therefore, the co m plainant, who is the victim of a dishonour of cheque must be construed to be victim in terms of the proviso to Section 372

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224 CR A -AS-256-2023 (O&M) re a d with the definition of victim under Section 2(wa) of the Cr.P.C.”

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Th e refore, in view of the judgmen t rendered by the Apex Court in Celestium Financial (supra) , the present appeal is remanded to the learned Sessions Judge, Gurugram with a dire c tion to treat the same as an appeal filed u n der Section 372 of the Cr.P. C . and entrust the same to appropriate Co u rt for its disposal on merits.

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Th e Registry is directed to send t h e complete paper-book and the record of th e case to the learned Sessions Ju d ge, Gurugram forthwith. 6. Di s posed of accordingly with a li b erty granted to the applicant to take all his p leas before the learned Trial C ourt. Pending miscellaneous applications, if a ny, also stand disposed of.

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(VINOD S. BHARDWAJ) 08.09.2025 JUDGE Sumit Gusain Whether s p eaking/reasoned : Yes/No Whether re p ortable : Yes/No

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Biru v. Narpat Singh

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Biru v. Narpat Singh

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