M/S Kumar Traders Vs Sandeep Midda — Cheque Dishonour | Punjab & Haryana HC (2025)

M/S Kumar Traders Vs Sandeep Midda — Cheque Dishonour | Punjab & Haryana HC (2025)

What the court decided

AI extract

Outcome

Application directed to be treated as an appeal filed under Section 372 Cr.P.C. and remitted to the learned Sessions Judge, Sirsa (who may retain it or assign it to a competent court) for disposal; applicant directed to appear before the learned Sessions Judge, Sirsa in person or through counsel on 04.09.2025; Registry directed to send the complete paper-book and record to the learned Sessions Judge, Sirsa forthwith; merits of the appeal left open.

Issue for consideration

Whether the applicant's application under Section 378(4) Cr.P.C. for leave to appeal against the acquittal may instead be directed as an appeal under Section 372 Cr.P.C. and sent to the appropriate Court for disposal. +1 more

Court's answer

The appeal, along with the accompanying application, is ordered to be remitted to the Court of the learned Sessions Judge, Sirsa, with a direction to treat it as having been filed under Section 372 Cr.P.C.; the Sessions Judge may entrust the appeal to himself/herself or assign it to some other court of competent jurisdiction.

Ratio / Principle

An appeal against an order of acquittal in a proceeding under Section 138 of the N.I. Act preferred by the complainant squarely falls within the ambit of the proviso to Section 372 Cr.P.C.

Key takeaways

This Court has not gone into the merits of the appeal; delving into the merits is expressly left open to the Sessions Court concerned.obiter¶32

Detailed headnote1 paragraphs

P&H HC (Manisha Batra, J.), CRM-A-362-2022 (O&M), decided 11.08.2025 — Application under S.378(4) Cr.P.C. for leave to appeal against judgment of acquittal dated 09.12.2021 passed by JMFC, Sirsa in complaint under S.138 N.I. Act (M/s Kumar Traders v. Sandeep Midha) — Counsel, invoking M/s. Celestium Financial v. A. Gnanasekaran, 2025(3) RCR (Criminal) 208 (SC), sought that the application be directed as an appeal under S.372 Cr.P.C. (pari materia with S.413 BNSS 2023) — Following the SC ruling that a victim in a private-complaint cheque-dishonour case has an unconditional right to appeal against acquittal under the proviso to S.372 Cr.P.C. without special leave under S.378(4), this Court held that a complainant's appeal against acquittal in a S.138 proceeding squarely falls within the proviso to S.372 Cr.P.C. — Appeal with accompanying application remitted to learned Sessions Judge, Sirsa to be treated as filed under S.372 Cr.P.C.; Sessions Judge may retain or assign it; merits left open; applicant to appear on 04.09.2025; Registry to forward paper-book and record; Disposed of.

CRM-A-362-2022 (O&M) -1-

IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH

279

CRM-A-362-2022 (O&M) Date of decision: 11.08.2025

M/s Kumar Traders ...Applicant

Versus

Sandeep Midda ...Respondent

CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA

Present:Mr. Anurag Jain, Advocate for the applicant.

None for the respondent.

MANISHA BATRA, J. (Oral)

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 09.12.2 0 21, passed by t h e Court of learned Judicial Ma g istrate First Class, Sirsa in Cri m inal complaint t i tled as M/s Kumar Traders vs. Sandeep Midha , filed under Se c tion 138 of the Negotiable Instruments Act ( f or short ‘N. I. Act’) , whereby the respondent/ a ccused had been acquitted of t h e said offence. 2. Today, learned counsel for t h e applicant, while relying up o n a recent pron o uncement of Hon’ble Supreme Court in M/s. Celestium Financial vs. A. Gnanasekaran Etc., 2025(3) RCR (Criminal) 208 , has submitted th a 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.

MOHAMMAD WASEEM ANSARI 2025.08.12 09:13 I attest to the accuracy and integrity of this document

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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:

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

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.

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 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

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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 seeking 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.

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.

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 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.

MOHAMMAD WASEEM ANSARI 2025.08.12 09:13 I attest to the accuracy and integrity of this document

CRM-A-362-2022 (O&M) -4-

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

MOHAMMAD WASEEM ANSARI 2025.08.12 09:13 I attest to the accuracy and integrity of this document

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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 .”

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 . 5. 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, Sirsa with a direction to treat the sa m e as having bee n filed under Section 372 of C r.P.C. The learned Sessions Judge, Sirsa may e ntrust the appeal to himself/he r self or assign it to some other c ourt of compete n t jurisdiction for its disposal.

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. 7. Learned counsel for the appli c ant, present in Court, is direct e d to inform the applicant for appearance bef o re the Sessions Court, Sirsa. The

MOHAMMAD WASEEM ANSARI 2025.08.12 09:13 I attest to the accuracy and integrity of this document

CRM-A-362-2022 (O&M) -6-

applicant i s directed to appear before th e learned Sessions Judge, Sirsa in person or t h rough their counsel on 04.09.20 2 5.

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

Disposed of.

11.08.2025 (MANISHA BATRA) Waseem Ansari JUDGE

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

MOHAMMAD WASEEM ANSARI 2025.08.12 09:13 I attest to the accuracy and integrity of this document