Shri Shayam Baba Stone Crusher Vs S.K.S. Nirman Vinijya Pvt. Ltd. and Another

Feeling aggrieved by the trial court's judgment, dismissing the complaint on merits, and acqui5ng the accused/respondent, the complainant had come up before this Court by filing the above-men8oned applica8on for leave to appeal accompanying the appeal.

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Counsel for the applicant prays for transfer of appeal to the first Appellate Court in view of judgment of Hon’ble Supreme Court passed in “Celes8um Financial v. A. Gnanasekaran, 2025(3) RCR(Criminal) 208, decided on 08.04.2025”.

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In Celes8um Financial v. A. Gnanasekaran, 2025(3) RCR(Criminal) 208, decided on

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08.04.2025, Hon’ble Supreme Court holds,

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[7.8] In the case of an offence alleged against an accused under Sec8on 138 of the Act, we are of the view that the complainant is indeed the vic8m owing to the alleged dishonour of a cheque. In the circumstances, the complainant can proceed as per the proviso to Sec8on 372 of the CrPC and he may exercise such an op8on and he need not then elect to proceed under Sec8on 378 of the CrPC.

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[8]. The right to prefer an appeal is no doubt a statutory right and the right to prefer an appeal by an accused against a convic8on is not merely a statutory right but can also be construed to be a fundamental right under Ar8cles 14 and 21 of

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JYOTI 2025.12.02 16:53 I attest to the accuracy and integrity of this order/judgment.

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CRM-A-535-2025

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2

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the Cons8tu8on. If that is so, then the right of a vic8m of an offence to prefer an appeal cannot be equated with the right of the State or the complainant to prefer an appeal. Hence, the statutory rigours for filing of an appeal by the State or by a complainant against an order of acquiFal cannot be read into the proviso to Sec8on 372 of the CrPC so as to restrict the right of a vic8m to file an appeal on the grounds men8oned therein, when none exists.

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[10]. As already noted, the proviso to Sec8on 372 of the CrPC was inserted in the statute book only with effect from 31.12.2009. The object and reason for such inser8on must be realised and must be given its full effect to by a court. In view of the aforesaid discussion, we hold that the vic8m of an offence has the right to prefer an appeal under the proviso to Sec8on 372 of the CrPC, irrespec8ve of whether he is a complainant or not. Even if the vic8m of an offence is a complainant, he can s8ll proceed under the proviso to Sec8on 372 and need not advert to sub-sec8on (4) of Sec8on 378 of the CrPC.

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In BNSS, 2023, S. 413 is analogous to S. 372 CrPC, 1973, and thus the ra8o of Celes8um Financial shall apply.

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However, the complainant should not face the burden of filing an appeal again before the Sessions Court because the law has been interpreted recently. Therefore, in the interest of Equity, Jus8ce, and Fair play, it would be appropriate to refer this maFer to the Sessions Court, where it will be registered as an Appeal under the Proviso to S. 372 CrPC/413 BNSS, 2023, as applicable. If there is any objec8on regarding whether it is an appeal under the CrPC or BNSS, it shall be registered under the Proviso to S. 413 BNSS, 2023, because the CrPC, 1973, has been repealed.

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Given above, the Registry is to send this file along with the Lower Court’s Record, if any, to the concerned Sessions Division.

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Leave to appeal is disposed of in the terms men8oned above. All pending applica8on(s), if any, stand closed.

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(ANOOP CHITKARA) JUDGE

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01.12.2025 Jyo�-II Whether speaking/reasoned: Yes Whether reportable: No .

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JYOTI 2025.12.02 16:53 I attest to the accuracy and integrity of this order/judgment.

Shri Shayam Baba Stone Crusher v. S.K.S. Nirman Vinijya Pvt. Ltd. and Another

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Shri Shayam Baba Stone Crusher v. S.K.S. Nirman Vinijya Pvt. Ltd. and Another

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