Balwinder Singh Vs M/S Gurdev Enterprises and Another

The present application has been preferred under Section 378(4) of the Code of Criminal Procedure, 1973 (hereinafter ‘CR.P.C.’) seeking grant of leave to appeal the judgment of acquittal dated 14.03.2023 passed by the learned Judicial Magistrate 1^st Class, Ludhiana in a case stemming from complaint dated 09.01.2018 filed under Section 138 of Negotiable Instruments Act, 1881.

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The complaint (supra) was filed on the ground of dishonour of cheque of Rs.2,20,000/-. After assessing all the material available on the record, the learned trial Court acquitted the respondent(s) vide judgment dated 14.03.2023.

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The Hon’ble Supreme Court in M/s. Celestium Financial vs. A. Gnanasekaran Etc., 2025(3) RCR (Criminal) 208 , after considerable discussion and comparative interpretation of Sections 372 and 378(4) of Cr.P.C., concluded that the victim has a right to file an appeal under Section

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SUMIT SINGH GUSAIN 2025.08.28 09:33 I attest to the accuracy and integrity of this document

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2

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242 CRM-A-587-2023 (O&M)

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372 of Cr.P.C. before the Court of Sessions. Speaking through Justice B.V. Nagarathna, the following was held:

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“ 7.12 The reasons for the above distinction are not far to see and can be elaborated as follows:

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Firstly , the victim of a crime must have an absolute right to prefer an appeal which cannot be circumscribed by any condition precedent. In the instant case, a victim under Section 138 of the Act, i.e., a payee or the holder of a cheque is a person who has suffered the impact of the offence committed by a person who is charged of the offence, namely, the accused, whose cheque has been dishonoured.

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Secondly , the right of a victim of a crime must be placed on par with the right of an accused who has suffered a conviction, who, as a matter of right can prefer an appeal under Section 374 of the Cr.P.C. A person convicted of a crime has the right to prefer an appeal under Section 374 as a matter of right and not being subjected to any conditions. Similarly, a victim of a crime, whatever be the nature of the crime, unconditionally must have a right to prefer an appeal.

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Thirdly , it is for this reason that the Parliament thought it fit to insert the proviso to sub-section 372 without mandating any condition precedent to be fulfilled by the victim of an offence, which expression also includes the legal representatives of a deceased victim who can prefer an appeal.

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3

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242

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CRM-A-587-2023 (O&M)

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On the contrary, as against an order of acquittal, the State, through the Public Prosecutor can prefer an appeal even if the complainant does not prefer such an appeal, though of course such an appeal is with the leave of the court. However, it is not always necessary for the State or a complainant to prefer an appeal. But when it comes to a victim’s right to prefer an appeal, the insistence on seeking special leave to appeal from the High Court under Section 378(4) of the Cr.P.C. would be contrary to what has been intended by the Parliament by insertion of the proviso to Section 372 of the Cr.P.C.

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Fourthly , the Parliament has not amended Section 378 to circumscribe the victim’s right to prefer an appeal just as it has with regard to a complainant or the State filing an appeal. On the other hand, the Parliament has inserted the proviso to Section 372 so as to envisage a superior right for the victim of an offence to prefer an appeal on the grounds mentioned therein as compared to a complainant.

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Fifthly , the involvement of the State in respect of an offence under Section 138 of the Act is conspicuous by its absence. This is because the complaint filed under that provision is in the nature of a private complaint as per Section 200 of the Cr.P.C. and Section 143 of the Act by an express intention incorporates the provisions of the Cr.P.C. in the matter of trial of such a deemed offence tried as a criminal offence. Therefore, the

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4

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242

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CRM-A-587-2023 (O&M)

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complainant, who is the victim of a dishonour of cheque must be construed to be victim in terms of the proviso to Section 372 read with the definition of victim under Section 2(wa) of the Cr.P.C.”

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Therefore, in view of the judgment rendered by the Apex Court in Celestium Financial (supra) , the present application seeking leave to appeal is remanded to the learned Sessions Judge, Ludhiana with a direction to treat the same as an appeal filed under Section 372 of the Cr.P.C. and entrust the same to appropriate Court for its disposal on merits.

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The Registry is directed to send the complete paper-book and the record of the case to the learned Sessions Judge, Ludhiana forthwith.

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Disposed of accordingly. Pending miscellaneous applications, if

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any, also stand disposed of.

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(VINOD S. BHARDWAJ) 25.08.2025 JUDGE Sumit Gusain Whether speaking/reasoned : Yes/No Whether reportable : Yes/No

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SUMIT SINGH GUSAIN 2025.08.28 09:33 I attest to the accuracy and integrity of this document

Balwinder Singh v. M/S Gurdev Enterprises and Another

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Balwinder Singh v. M/S Gurdev Enterprises and Another

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