Mewa Singh Vs Amrinder Singh @ Aminder Singh

The instant application has b een filed by the applicant u n der Section 37 8 (4) of the Code of Criminal Pr o cedure (for short ‘Cr.P.C.’) see k ing grant of lea v e to file appeal against the jud g ment of acquittal dated 05.09.2 0 18, passed by t he Court of learned Judicial M agistrate First Class, Amrits a r in Criminal c o mplaint bearing No. 710 of 2015, titled as Mewa Singh vs. Amrinder Singh @ Aminder Singh , filed u nder Section 138 of the Negot i able Instruments Act (for short ‘N. I. Act’) , whereby the respondent/accused had been acquit t ed of the aforementioned offen c e.

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Today, the case was fixed for addressing arguments on the application. Learned counsel for the applicant, while relying upon a r e cent

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pronounce m ent of Hon’ble Supreme Court in M/s. Celestium Financial vs. A. Gnanasekaran Etc., 2025(3) RCR (Criminal) 208 , have submitted tha t by directing t h e present application as an a p peal, filed under Sections 37 2 of Cr.P.C. (which is pari materia with Section 413 of Bharatiya Nagarik Sura k sha Sanhita, 20 2 3) , the same be sent to appropr i ate Court for its disposal.

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In M/s. Celestium Financial ’ s case (supra), the Hon’ble Sup r eme Court has i n terpreted Sections 372 and 378 ( 4) of Cr.P.C. and has observed that the victim in a private complaint case h a s a right to file an appeal, u n der Section 37 2 of Cr.P.C., against the orde r of acquittal before the Cou r t of Sessions. T h e Hon’ble Supreme Court has o bserved as follows:

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

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Firstly , the victim of a c rime must have an absolute rig h t to prefer an appeal which ca n not be circumscribed by any condition precedent. In the instant c a se, a victim under Section 138 o f the Act, i.e., a payee or the h o lder of a cheque is a person wh o has suffered the impact of the offence committed by a person w h o is charged of the offence, n a mely, the accused, whose chequ e has been dishonoured.

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Secondly , the right of a v i ctim of a crime must be placed o n par with the right of an accus e d who has suffered a conviction, w ho, as a matter of right can pr e fer an appeal under Section 374 of the CrPC. A person convicte d of a crime has the right to pref e r an appeal under Section 37 4 as a matter of right and not b eing subjected to any conditi o ns. Similarly, a victim of a c r ime, whatever be the nature of t he crime, unconditionally must h a ve a right to prefer an appeal. Thirdly , it is for this reas o n that the Parliament thought it f it to insert the proviso to su b -section 372 without mandating any

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condition precedent to be fulfilled by the victim of an off e nce, which expression also includes the legal representatives of a deceased victim who can prefer an appeal. On the contrar y , as against an order of acq u ittal, the State, through the P u blic Prosecutor can prefer an a p peal even if the complainant doe s not prefer such an appeal, tho u gh of course such an appeal is wit h the leave of the court. Howe v er, it is not always necessary fo r the State or a complainant to p refer an appeal. But when it com e s to a victim's right to prefer an appeal, the insistence on se e king special leave to appeal fro m the High Court under Section 3 7 8(4) of the CrPC would be con t rary to what has been intended b y the Parliament by insertion o f the proviso to Section 372 o f the CrPC.

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Fourthly , the Parliamen t has not amended Section 37 8 to circumscribe the victim's r ight to prefer an appeal just as i t has with regard to a complain a nt or the State filing an appeal. O n the other hand, the Parliament has inserted the proviso to Sectio n 372 so as to envisage a superi o r right for the victim of an offen c e to prefer an appeal on the g r ounds mentioned therein as com p ared to a complainant.

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Fifthly , the involvement of the State in respect of an of f ence under Section 138 of the A ct is conspicuous by its absence. This is because the complaint filed under that provision is i n the nature of a private compla i nt as per Section 200 of the CrP C and Section 143 of the Act b y an express intention incorporate s the provisions of the CrPC i n the matter of trial of such a de e med offence tried as a crimina l offence. Therefore, the complai n ant, who is the victim of a dis h onour of cheque must be constru e d to be victim in terms of the proviso to Section 372 read wit h the definition of victim under S ection 2(wa) of the Cr.P.C. 8. The right to prefer an a p peal is no doubt a statutory righ t and the right to prefer an appe a l by an accused against a convicti o n is not merely a statutory ri g ht but can also be construed to b e a fundamental right under A r ticles 14 and 21 of the Constituti o n. If

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that is so, then the right o f a victim of an offence to pref e r an appeal cannot be equate d with the right of the State o r the complainant to prefer an a ppeal. Hence, the statutory rigour s for filing of an appeal by the State or by a complainant again s t an order of acquittal cannot b e read into the proviso to Section 372 of the CrPC so as to restri c t the right of a victim to file an a p peal on the grounds mentioned t herein, when none exists. 9. In the circumstances, w e find that Section 138 of the Act b eing in the nature of a penal pr o vision by a deeming fiction again s t an accused who is said to ha v e committed an offence under the said 50 provision, if acquitted, can be proceeded against by a v i ctim of the said offence, nam e ly, the person who is entitled t o the proceeds of a cheque whic h has been dishonoured, in terms of the proviso to Section 372 of the CrPC, as a victim. As alr e ady noted, a victim of an offen c e could also be a complainant. In such a case, an appeal can be preferred either under the provi s o to Section 372 or under S e ction 378 by such a victim. I n the absence of the proviso t o Section 372, a victim of an of f ence could not have filed an a ppeal as such, unless he was also a complainant, in which e v ent he could maintain an appe a l if special leave to appeal ha d been granted by the High Court a n d if no such special leave was granted then his appeal would n o t be maintainable at all. On the other hand, if the victim of an off e nce, who may or may not be the complainant, proceeds unde r the proviso to Section 372 o f the CrPC, then in our view, such a victim need not seek speci a l leave to appeal from the High C o urt. In other words, the victim of an offence would have the rig h t to prefer an appeal, inter ali a , against an order of acquittal in t e rms of the proviso to Section 3 7 2 without seeking any special lea v e to appeal from the High C o urt only on the grounds menti o ned therein. A person who is a complainant under Section 200 of the CrPC who complains abo u t the offence committed by a p e rson who is charged as an accused under Section 138 of the Act, thus

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has 51 the right to prefer a n appeal as a victim under the pr o viso to Section 372 of the CrP C .

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10. As already noted, the p roviso to Section 372 of the CrPC was inserted in the statute bo o k only with effect from 31.12. 2 009. The object and reason fo r such insertion must be realised and must be given its full effect to by a court. In view of the afor e said discussion, we hold that t h e victim of an offence has the rig h t to prefer an appeal under th e proviso to Section 372 of the CrPC, irrespective of whether h e is a complainant or not. Even i f the victim of an offence is a c omplainant, he can still proceed u nder the proviso to Section 372 and need not advert to sub-sectio n (4) of Section 378 of the CrP C .”

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On going through the above mentioned pronouncement o f the Apex Cou r t, it is clear that an appeal a gainst an order of acquittal i n a proceeding under Section 138 of the N. I . Act preferred by the complai n ant squarely fa l ls within the ambit of proviso to Section 372 of Cr.P.C. Si m ilar observation s have been made by this Court in Satish Kumar vs. Jugal Kishore , CRM-A-2700-MA-2018 and Ajmer Kundu (deceased) through LRs vs. Pardeep Sharma , CRM-A-481-2022 , vide orders dated 02.07.2025 and in Raj Kumar vs. Rajender, CRM-A-826-2025(O&M) vide order dated 07.07.202 5 . 6. In view of the discussion as made above and the observa t ions made by H o n’ble Supreme Court in M/s. Celestium Financial ’s case (su p ra), the appeal a long with the accompanying ap p lication is ordered to be remitt e d to the Court o f learned Sessions Judge, Amrit s ar with a direction to treat the s ame as having b e en filed under Section 372 of C r.P.C. The learned Sessions J u dge, Amritsar may entrust the appeal to himse l f/herself or assign it to some o ther court of co m petent jurisdiction for its dispo s al.

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Needless to clarify that it is l e ft open for the consideration o f the Sessions C o urt concerned to delve into th e merits of the appeal as this C ourt has not gon e into the same.

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Learned counsel for the appli c ant, present in Court, is direct e d to inform the a pplicant for appearance befor e the Sessions Court, Amritsar. The applicant is directed to appear before the l earned Sessions Judge, Amrits a r in person or t h rough their counsel on 01.09.20 2 5.

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The Registry is directed to s end the complete paper-book and record of th e case to learned Sessions Judge, Amritsar forthwith. 10. Disposed of.

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04.08.2025 (MANISHA BATRA) Waseem Ansari JUDGE

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Whether speaking/reasoned Yes/No Whether reportable Yes/No

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Mewa Singh v. Amrinder Singh @ Aminder Singh

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Mewa Singh v. Amrinder Singh @ Aminder Singh

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