Rajesh Vs Babita — Cheque Dishonour | Punjab & Haryana HC (2025)

Rajesh Vs Babita — Cheque Dishonour | Punjab & Haryana HC (2025)

What the court decided

AI extract

Outcome

Application directed to be treated as an appeal under Section 372 Cr.P.C. and, along with the accompanying application, remitted to the Court of learned Sessions Judge, Hisar for disposal (the Sessions Judge may entertain it personally or assign it to a court of competent jurisdiction); Registry directed to send the complete paper-book and record to the learned Sessions Judge, Hisar forthwith; parties directed to appear before the learned Sessions Judge, Hisar on 04.09.2025.

Issue for consideration

Whether the applicant's leave application under Section 378(4) Cr.P.C. may be directed as an appeal under Section 372 Cr.P.C. and sent to the appropriate Court for disposal, in view of the Supreme Court's pronouncement in M/s. Celestium Financial. +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, Hisar, with a direction to treat the same as having been filed under Section 372 of Cr.P.C.; the learned Sessions Judge, Hisar may entrust the appeal to himself/herself or assign it to some other court of competent jurisdiction for its disposal.

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 of Cr.P.C.

Key takeaways

It is left open for the consideration of the Sessions Court concerned to delve into the merits of the appeal; this Court has not gone into the merits.obiter¶30

Detailed headnote1 paragraphs

High Court for the States of Punjab and Haryana at Chandigarh — CRM-A-540-2019 (O&M), decided 11.08.2025 (Manisha Batra, J., Oral). Rajesh, applicant, had sought leave under Section 378(4) Cr.P.C. to appeal against the acquittal dated 03.12.2018 (JMFC, Hisar) of respondent Babita in a complaint under Sections 138 and 142, Negotiable Instruments Act, titled 'Rajesh vs. Babita'. Acting on counsel's joint submission founded on the Supreme Court's interpretation in M/s. Celestium Financial vs. A. Gnanasekaran Etc., 2025(3) RCR (Criminal) 208 — that a victim/complainant in a private Section 138 complaint may appeal against acquittal under the proviso to Section 372 Cr.P.C. without special leave under Section 378(4) — the Court held that the complainant's appeal against acquittal in a Section 138 proceeding squarely falls within the proviso to Section 372 Cr.P.C., and disposed of the matter by remitting the appeal with the accompanying application to the learned Sessions Judge, Hisar, with direction to treat it as filed under Section 372 Cr.P.C., the Sessions Judge being free to entrust it to himself/herself or assign it to a court of competent jurisdiction. Merits of the appeal were expressly left open for the Sessions Court. Similar earlier directions of this Court were noted in Satish Kumar vs. Jugal Kishore (CRM-A-2700-MA-2018) and Ajmer Kundu (deceased) through LRs vs. Pardeep Sharma (CRM-A-481-2022), both dated 02.07.2025, and Raj Kumar vs. Rajender (CRM-A-826-2025(O&M)) dated 07.07.2025. Parties directed to appear before the learned Sessions Judge, Hisar on 04.09.2025; Registry to send the complete paper-book and record forthwith.

CRM-A-540-2019 (O&M) -1-

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

274

CRM-A-540-2019 (O&M) Date of decision: 11.08.2025

Rajesh ...Applicant

Versus

Babita ...Respondent

CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA

Present:Mr. Mohit Saini, Advocate for Mr. Mohit Garg, Advocate for the applicant.

Ms. Deepshikha, Advocate for Mr. Sandeep Goyat, Advocate 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 03.12.2 0 18, passed by t h e Court of learned Judicial Ma g istrate First Class, Hisar in Cri m inal complaint t i tled as Rajesh vs. Babita , file d under Sections 138 and 142 o f the Negotiable Instruments Act (for short ‘N. I. Act’) , whereby the respondent/ a ccused had been acquitted of t h e said offence. 2. Today, learned counsel for the parties, while relying upon a r e cent 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

MOHAMMAD WASEEM ANSARI 2025.08.12 10:40 I attest to the accuracy and integrity of this document

CRM-A-540-2019 (O&M) -2-

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.

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

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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.

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

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CRM-A-540-2019 (O&M) -4-

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 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

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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 .”

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, Hisar 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, Hisar 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. 6. 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.

MOHAMMAD WASEEM ANSARI 2025.08.12 10:40 I attest to the accuracy and integrity of this document

CRM-A-540-2019 (O&M) -6-

Learned counsel for the parti e s, present in Court, are directed to inform thei r respective parties for appearance before the Sessions Court, Hisar. The parties are directed to appear before t h e learned Sessions Judge, His a r 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, Hisar forthwith. 9. Disposed of.

11.08.2025 (MANISHA BATRA) Waseem Ansari JUDGE Whether speaking/reasoned Yes/No Whether reportable Yes/No

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