Karnail Singh Vs Karnail Singh

Th e present application has been p r eferred under Section 378(4) of the Code o f Criminal Procedure, 1973 (h e reinafter ‘Cr.P.C.’) seeking grant of leave t o appeal against the judgment o f acquittal dated 02.03.2015 passed by the learned Judicial Magistrate 1st Class, Chandigarh in a case stemming from complaint No.1100432 of 28. 0 8.2012 filed under Section 138 of Negotia b le Instruments Act, 1881.

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It i s noticed that the instant app l ication pertains to the year 2015, however, no one has entered appearance o n behalf of the applicant(s), hence, it is dee m ed expedient to nominate a Legal Aid Counsel Mr. Gaurav Gupta, Advocate, who is present in the Court, is appointed as the Legal Aid Counsel to repr e sent the case on behalf of appli c ant(s) to arrive at a decision. He has gone th r ough the case file and submit s that the present application has been filed a gainst the judgment of acquitta l dated 02.03.2015 passed by

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SUMIT SINGH GUSAIN 2025.09.03 19:16 I attest to the accuracy and integrity of this document

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226 CR M -A-1180-MA-2015(O&M) the Judicial Magistrate 1st Class, Chandigarh, in complaint No.1100432 of 28.08.2012 fil e d under Section 138 of Negot i able Instruments Act, 1881. He fairly sub m its that in view of the judg m ent passed by the Hon’ble Supreme Court in M/s. Celestium Financial vs. A. Gnanasekaran Etc., 2025(3) RCR (Criminal) 208, the applicant wo u ld have a remedy before the Court of Sessio n s.

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Th e complaint (supra) was filed o n the ground of dishonour of cheque of Rs.3 0 ,00,000/-. After assessing all t he material available on the record, the lea r ned trial Court acquitted the r espondent(s) vide judgment dated 02.03.2015.

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

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226 CR M -A-1180-MA-2015(O&M) 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. 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 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

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SUMIT SINGH GUSAIN 2025.09.03 19:16 I attest to the accuracy and integrity of this document

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226 CR M -A-1180-MA-2015(O&M) 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.

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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 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 a pplication seeking leave to appeal is remanded to the learned Sessions Judge, Chandigarh with a direction to treat the same as an appeal file d under Section 372 of the Cr.P.C. and ent r ust the same to appropriate Cou r t for its disposal on merits. 6. 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, Chandigarh forthwith. 7. Di s posed of accordingly. Pending m iscellaneous applications, if any, also stand d isposed of.