Anokh Singh Vs Mandhir Singh

The applicant has filed the pr e sent application under Sectio n 378(4) Cr.P.C. for grant of leave to file a n appeal against the impugne d order dated 1 0.07.2018 passed by the learne d Chief Judicial Magistrate, Tar n Taran wher e by the trial Court has acquitt e d the respondent-accused in a complaint fi l ed under Section 138 of the N egotiable Instruments Act (fo r short, ‘the A c t’).

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Hon’ble Supreme Court in M/s. Celestium Financial vs. A.

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Gnanasekaran Etc., 2025(3) RCR (Criminal) 208, after considerabl e discussion a n d comparative interpretation o f Sections 372 and 378(4) o f

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POONAM SHARMA 2025.09.16 14:53 I attest to the accuracy and authenticity of this document1

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CRM-A-2433-MA-2018 (O&M) Cr.P.C., con c luded that the victim has a rig h t to file an appeal under Sectio n 372 of Cr.P.C. before the Court of Sessi o ns. Relevant para of the sai d judgment is a s under:-

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“7.12 T he reasons for the above disti n ction are not far to see and ca n be ela b orated as follows:

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F irstly, the victim of a crime m ust have an absolute right t o p refer an appeal which can n ot be circumscribed by an y c ondition precedent. In the inst a nt case, a victim under Sectio n 138 of the Act, i.e., a payee or t h e holder of a cheque is a perso n w ho has suffered the impact o f the offence committed by a p erson who is charged of the offence, namely, the accused , w hose cheque has been dishono u red.

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S econdly, the right of a victim o f a crime must be placed on pa r w ith the right of an accused wh o has suffered a conviction, who , a s a matter of right can prefer a n appeal under Section 374 o f t he Cr.P.C.. A person convict e d of a crime has the right t o p refer an appeal under Section 3 74 as a matter of right and no t b eing subjected to any condi t ions. Similarly, a victim of a c rime, whatever be the nature of the crime, unconditionall y m ust have a right to prefer an a p peal.

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T hirdly, it is for this reason tha t the Parliament thought it fit t o i nsert the proviso to sub-secti o n 372 without mandating an y c ondition precedent to be fulfil l ed by the victim of an offence , w hich expression also include s the legal representatives of a d eceased victim who can prefer an appeal.

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O n the contrary, as against a n order of acquittal, the State , t hrough the Public Prosecutor c an prefer an appeal even if th e c omplainant does not prefer s u ch an appeal, though of cours e s uch an appeal is with the leav e of the court. However, it is no t

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POONAM SHARMA 2025.09.16 14:53 I attest to the accuracy and authenticity of this document2

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CRM-A-2433-MA-2018 (O&M)

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a lways necessary for the State or a complainant to prefer a n a ppeal. But when it comes to a v ictim's right to prefer an appeal , t he insistence on seeking speci a l leave to appeal from the Hig h C ourt under Section 378(4) of t h e Cr.P.C. would be contrary t o w hat has been intended by the Parliament by insertion of th e p roviso to Section 372 of the C r.P.C. Fourthly, the Parliamen t h as not amended Section 378 t o circumscribe the victim's righ t t o prefer an appeal just as it has with regard to a complainant o r t he State filing an appeal. On th e other hand, the Parliament ha s i nserted the proviso to Section 3 72 so as to envisage a superio r r ight for the victim of an offe n ce to prefer an appeal on th e g rounds mentioned therein as c o mpared to a complainant.

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F ifthly, the involvement of th e State in respect of an offenc e u nder Section 138 of the Act is c onspicuous by its absence. Thi s i s because the complaint filed under that provision is in th e n ature of a private complaint a s per Section 200 of the Cr.P.C . a nd Section 143 of the Act by a n express intention incorporate s t he provisions of the Cr.P.C. i n the matter of trial of such a d eemed offence tried as a cr i minal offence. Therefore, th e c omplainant, who is the victim of a dishonour of cheque mus t b e construed to be victim in ter m s of the proviso to Section 37 2 r ead with the definition of vic t im under Section 2(wa) of th e C r.P.C.”

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Further, applying the doctri n e of prospective overruling , Hon’ble Su p reme Court in Directorate of Revenue Intelligence vs. Raj Kumar Arora in Criminal Appeal No. 1319 Of 2013 with Criminal Appeal No. 272 of 2014 decided on 17.04.2025, while clarifying tha t judgments s h all be applicable retrospectivel y , has held as under:-

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POONAM SHARMA 2025.09.16 14:53 I attest to the accuracy and authenticity of this document3

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CRM-A-2433-MA-2018 (O&M)

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“91. T h e declaration of a statute deali n g with substantive rights, by th e legisla t ure, is considered to be prospe c tive unless it is expressly or b y necessary implication made to have r e trospective operation. The lega l maxi m "Nova Constitutio Futuris F orman Imponere Debet, No n Praete r itis" indicating that a new la w ought to regulate what is t o follow and not the past, carries with i t a presumption of prospectivit y and th i s presumption is generally said to operate unless the contrary i s shown by an express provision in the s tatute or if the retrospectivity i s other w ise discernible through necess a ry implication. This is becaus e such s t atutes would have the conseq u ence of affecting vested rights , impos e new burdens or impair existin g obligations. However, when a decisi o n rendering an opinion as rega r ds the interpretation of a pena l provis i on is subsequently overruled b y the decision of a larger bench , the co n sequence of the overruling is s tarkly different and by default , retros p ective. This is because it is settled law that the law declared by this Court is retrospective and is normally assumed to be the law from the inception .

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T h e operation of a newly enact e d statute or rule must not b e confused with the effect of a judg m ent. A judgment or decision which interprets a statute or provision thereof declares the meaning of the statute as it should be construed from the date of its enactment. In other words, the judgment declares what the legislature had said at the time when the law was promulgated and therefore, it has retrospective effect. On the contrary, it is th e statute or the rule which is presu m ed to be prospective unles s expressly made retrospective. What fo llows from the same, is that a decisi o n or judgment enunciating a pr i nciple of law is applicable to al l cases i rrespective of the stage of pe n dency before different forum s since w hat has been enunciated is t he meaning of the law whic h existe d from the inception of the conc e rned statute or provision. Wha t has b e en declared to be the law of t he land must be held to hav e alway s been the law of the land. This conclusion also stems from th e

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POONAM SHARMA 2025.09.16 14:53 I attest to the accuracy and authenticity of this document4

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CRM-A-2433-MA-2018 (O&M)

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ration a le that the duty of the court is n ot to "pronounce a new law bu t to mai n tain and expound the old one". (emphasis added)

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Therefore, in view of the judg m ents rendered by the Hon’bl e

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Supreme Co u rt in Celestium Financial (sup r a) and Directorate of Revenue

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Intelligence (supra), learned Sessions Judg e , concerned, is directed to trea t the present leave to appeal as an appeal fil e d under Section 372 of Cr.P.C . and entrust t h e same to the appropriate Cour t for its disposal on merits.

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