M/S Dvs Infastructure Pvt. Ltd. Vs M/S Alphatech Projects India Pvt. Ltd. & Ors.

Feeling aggrieved by the trial court's judgment, dismissing the complaint on merits, and acqui.ng the accused/respondent, a0er that, the appeal was also dismissed by the learned Addi2onal Sessions Judge, Gurgaon, being non-maintainable, the complainant had come up before this Court by filing the above-men2oned appeal.

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Counsel for the applicant submits that Appellate Court dismissed the appeal being non-maintainable. He further submits that per the ra2o of judgment of Hon’ble Supreme Court passed in “Celes2um Financial v. A. Gnanasekaran, 2025(3) RCR(Criminal) 208, decided on 08.04.2025 is maintainable before Ist Appellate Court.

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Counsel for the appellants prays for se.ng aside the judgment of appellate Court

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and transfer of present appeal to the first Appellate Court for its disposal in accordance with law on merits.

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In Celes2um 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 Sec2on 138 of the Act, we are of the view that the complainant is indeed the vic2m owing to the alleged dishonour of a cheque. In the circumstances, the complainant can proceed as

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JYOTI 2025.11.21 15:36 I attest to the accuracy and integrity of this order/judgment.

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CRA-AS-185-2015

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2

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per the proviso to Sec2on 372 of the CrPC and he may exercise such an op2on and he need not then elect to proceed under Sec2on 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 convic2on is not merely a statutory right but can also be construed to be a fundamental right under Ar2cles 14 and 21 of the Cons2tu2on. If that is so, then the right of a vic2m 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 Sec2on 372 of the CrPC so as to restrict the right of a vic2m to file an appeal on the grounds men2oned therein, when none exists.

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[10]. As already noted, the proviso to Sec2on 372 of the CrPC was inserted in the statute book only with effect from 31.12.2009. The object and reason for such inser2on must be realised and must be given its full effect to by a court. In view of the aforesaid discussion, we hold that the vic2m of an offence has the right to prefer an appeal under the proviso to Sec2on 372 of the CrPC, irrespec2ve of whether he is a complainant or not. Even if the vic2m of an offence is a complainant, he can s2ll proceed under the proviso to Sec2on 372 and need not advert to sub-sec2on (4) of Sec2on 378 of the CrPC.

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In BNSS, 2023, S. 413 is analogous to S. 372 CrPC, 1973, and thus the ra2o of Celes2um Financial shall apply.

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Given the ra2o of the judgment of Celes�um Financial v.(supra), judgment of appellate Court dated 05.03.2013 is set aside.

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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, Jus2ce, 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 objec2on 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 and concerned Court shall decide the same on its own merit in accordance with law.

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JYOTI 2025.11.21 15:36 I attest to the accuracy and integrity of this order/judgment.

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CRA-AS-185-2015

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Appeal is disposed of in the terms men2oned above. All pending applica2on(s), if any, stand closed.

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(ANOOP CHITKARA) JUDGE 21.11.2025 jyo�-II Whether speaking/non-speaking: Speaking Whether reportable: No.

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JYOTI 2025.11.21 15:36 I attest to the accuracy and integrity of this order/judgment.

M/S Dvs Infastructure Pvt. Ltd. v. M/S Alphatech Projects India Pvt. Ltd. & Ors.

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M/S Dvs Infastructure Pvt. Ltd. v. M/S Alphatech Projects India Pvt. Ltd. & Ors.

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