Jatinder Kumar Vs Girdhari Lal Sharma

The instant application has been filed under Section 378(4) of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C.’) seeking grant of leave to file an appeal against the judgment of acquittal dated 05.11.2011, passed by the learned Sub Divisional Judicial Magistrate, Phillaur in Criminal Complaint bearing No. 46/2/96, titled as Jatinder Kumar Vs. Girdhari Lal Sharma , filed under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘N. I. Act’) , whereby the respondent was acquitted for commission of offence punishable under Section 138 of the N. I. Act.

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Today, the case was fixed for addressing arguments on the application. Learned counsel for the applicant, while relying upon a recent pronouncement of Hon’ble Supreme Court in M/s. Celestium Financial vs. A. Gnanasekaran Etc., 2025(3) RCR (Criminal) 208 , has submitted that by directing the present application as an appeal, filed under Sections 372 of Cr.P.C. (which is pari materia with Section 413 of Bharatiya Nagarik

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Parveen Sharma 2025.07.14 12:10 I attest to the accuracy and integrity of this document

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CRM-A-61-MA-2012

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Suraksha Sanhita, 2023) , the same be sent to appropriate Court for its disposal.

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In M/s. Celestium Financial ’s case (supra), the Hon’ble Supreme Court has interpreted Sections 372 and 378(4) of Cr.P.C. and has observed that the victim in a private complaint case has a right to file an appeal, under Section 372 of Cr.P.C., against the order of acquittal before the Court of Sessions. The Hon’ble Supreme Court has observed as follows:

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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 CrPC. 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. 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

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Parveen Sharma 2025.07.14 12:10 I attest to the accuracy and integrity of this document

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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 CrPC would be contrary to what has been intended by the Parliament by insertion of the proviso to Section 372 of the CrPC.

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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 CrPC and Section 143 of the Act by an express intention incorporates the provisions of the CrPC in the matter of trial of such a deemed offence tried as a criminal offence. Therefore, the 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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A coordinate Bench of this Court in Satish Kumar vs. Jugal

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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, while relying upon M/s. Celestium Financial ’s case (supra), has ordered to treat the application seeking leave to file appeal as an appeal filed under Section 372 of Cr.P.C.

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Therefore, in view of the judgment rendered by the Hon’ble

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Parveen Sharma 2025.07.14 12:10 I attest to the accuracy and integrity of this document

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Supreme Court in M/s. Celestium Financial ’s case (supra), coupled with the fact that the present application is pending since 2012, the present appeal along with the accompanying application(s) is remitted to learned Sessions Judge, Phillaur with direction to treat the same as having been filed under Section 372 of Cr.P.C. He/she shall either decide the appeal himself/herself or entrust the same to appropriate Court for its disposal.

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Needless to clarify that it is left open for the consideration of the Sessions Court concerned to delve into the merits of the appeal as this Court has not gone into the same.

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Learned counsel for the applicant, present in Court, is directed to inform the applicant for appearance before the Sessions Court, Phillaur in person or through counsel on 19.08.2025.

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