264 IN THE HIGH COURT OF PUNJAB AND HARYANA UCO BANK JOGINDER SINGH CORAM: HON’BLE MR. Present: None for the parties. HARPREET SINGH BRAR 1. 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 by the Chief Judicial Magistrate complaint dated Instruments Act, 1881 2. The complaint cheque of the amount of available on the record, the learned trial Court acquitted the respondent judgment dated 3. The Hon’ble Supreme Court in Gnanasekaran Etc., 2025(3) RCR (Criminal) 208 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 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM Date of decision: ...APPLICANT V/S JOGINDER SINGH ...RESPONDENT HON’BLE MR. JUSTICE HARPREET SINGH BRAR None for the parties. **** HARPREET SINGH BRAR, J. (ORAL) 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 against the judgment of acquittal dated Judicial Magistrate SAS Nagar-Mohali complaint dated 30.09.2014 filed under Section 138 Instruments Act, 1881. The complaint(supra) was filed on the ground of dishonour of cheque of the amount of Rs.10,50,000/-. After assessing all the material available on the record, the learned trial Court acquitted the respondent judgment dated 13.09.2016. The Hon’ble Supreme Court in M/s. Celestium Financial vs. A. Gnanasekaran Etc., 2025(3) RCR (Criminal) 208 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 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-A-2209-MA-2016 Date of decision: 21.07.2025 APPLICANT-APPELLANT ...RESPONDENT HARPREET SINGH BRAR The present application has been preferred under Section 378(4) of the Code of Criminal Procedure, 1973 (hereinafter ‘CR.P.C.’) seeking grant the judgment of acquittal dated 13.09.2016 passed Mohali in a case stemming from under Section 138/142 of Negotiable was filed on the ground of dishonour of After assessing all the material available on the record, the learned trial Court acquitted the respondents vide 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 HIMANSHU 2025.07.23 11:48 I attest to the accuracy and integrity of this document CRM-A-2209-MA 372 of Cr.P.C. before the Court of Sessions. Speaking through Justice B.V. Nagarathna, the following was held: MA-2016 2 372 of Cr.P.C. before the Court of Sessions. Speaking through Justice B.V. a, the following was held: “7.12 The reasons for the above distinction are not far to see and can be elaborated as follows: 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. 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 ri prefer an appeal. Thirdly, it is for this reason that the Parliament thought it fit to insert the proviso to sub 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 with the leave of the However, it is not always necessary for the State or a complainant to prefer an appeal. But when it comes to a 372 of Cr.P.C. before the Court of Sessions. Speaking through Justice B.V. “7.12 The reasons for the above distinction are not far to see and can be elaborated as follows: Firstly, the victim of a crime must have an absolute right to prefer an appeal which cannot be circumscribed by any ent. 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 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 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 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 gal representatives of a deceased victim who can prefer 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 h 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 HIMANSHU 2025.07.23 11:48 I attest to the accuracy and integrity of this document CRM-A-2209-MA 4. Further still, applying the doctrine of prospective overruling, a two Judge bench of the Hon’ble Supreme Court in Intelligence vs. Raj Kumar Arora Criminal Appeal No. 272 of 2014 decided on 17.04.2025 a rule of thumb, judgments shall be applicable retrospectively. Speaking through Justice J.B. Pardiwala, the following was opined: MA-2016 3 victim's right to prefer an appeal, the insistence on seeking special leave to appeal from the High 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. 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. Fifthly, the involvement of the State in respect of an offence under Section 138 of the Act is conspicuou This is because the complaint filed under that provision is in the nature of a private complaint as per Section 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 w of victim under Section 2(wa) of the CrPC.” Further still, applying the doctrine of prospective overruling, a two Judge bench of the Hon’ble Supreme Court in Intelligence vs. Raj Kumar Arora in Criminal Appeal Criminal Appeal No. 272 of 2014 decided on 17.04.2025 a rule of thumb, judgments shall be applicable retrospectively. Speaking through Justice J.B. Pardiwala, the following was opined: “91. The declaration of a statute dealing with substantive rights, by the legislature, is considered to be prospective victim's right to prefer an appeal, the insistence on seeking special leave to appeal from the High Court under (4) of the CrPC would be contrary to what has been intended by the Parliament by insertion of the proviso 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 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. 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 ates 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 CrPC.” Further still, applying the doctrine of prospective overruling, a two Judge bench of the Hon’ble Supreme Court in Directorate of Revenue Criminal Appeal No. 1319 Of 2013 with Criminal Appeal No. 272 of 2014 decided on 17.04.2025 has clarified that as a rule of thumb, judgments shall be applicable retrospectively. Speaking through Justice J.B. Pardiwala, the following was opined: statute dealing with substantive rights, by the legislature, is considered to be prospective HIMANSHU 2025.07.23 11:48 I attest to the accuracy and integrity of this document CRM-A-2209-MA MA-2016 4 unless it is expressly or by necessary implication made to have retrospective operation. The legal maxim "Nova Constitutio Futuris Forman Imponere Debet, Non Praeteritis" indicating that a new law ought to regulate what is to follow and not the past, carries with it a presumption of prospectivity and this presumption is generally said to operate unless the contrary is shown by an express provision in the statute or is otherwise discernible through necessary implication.This is because such statutes would have the consequence of affecting vested rights, impose new burdens or impair existing obligations. However, when a decision rendering an opinion as regards the interpretation of a penal provision is subsequently overruled by the decision of a larger bench, the consequence of the overruling is starkly different and by default, retrospective. settled law that the law declare retrospective and is normally assumed to be the law from the inception. 92. The operation of a newly enacted statute or rule must not be confused with the effect of a judgment. or decision which interprets a statute or provision thereof declares the meaning of the statute as it should be construed from the date of its enactment. In other words, the judgment declares what the legislature had said at the time when the law was promulgated and therefore, it has retrospective effect. On the contrary, it is the statute or the rule which is presumed to be prospective unless expressly made retrospective. What follows from the same, is that a decision or judgment enunciating a applicable to all cases irrespective of the stage of pendency before different forums since what has been enunciated is the meaning of the law which existed from the inception of the concerned statute or provision. What has been declare unless it is expressly or by necessary implication made to have retrospective operation. The legal maxim "Nova Constitutio Futuris Forman Imponere Debet, Non eritis" indicating that a new law ought to regulate what is to follow and not the past, carries with it a presumption of prospectivity and this presumption is generally said to operate unless the contrary is shown by an express provision in the statute or if the retrospectivity is otherwise discernible through necessary implication.This is because such statutes would have the consequence of affecting vested rights, impose new burdens or impair existing obligations. However, when a decision rendering ion as regards the interpretation of a penal provision is subsequently overruled by the decision of a larger bench, the consequence of the overruling is starkly different and by default, retrospective. This is because it is settled law that the law declared by this Court is retrospective and is normally assumed to be the law from 92. The operation of a newly enacted statute or rule must not be confused with the effect of a judgment. A judgement or decision which interprets a statute or provision thereof declares the meaning of the statute as it should be construed from the date of its enactment. In other words, the judgment declares what the legislature had said at the aw was promulgated and therefore, it has On the contrary, it is the statute or the rule which is presumed to be prospective unless expressly made retrospective. What follows from the same, is that a decision or judgment enunciating a principle of law is applicable to all cases irrespective of the stage of pendency before different forums since what has been enunciated is the meaning of the law which existed from the inception of the concerned statute or provision. What has been declared HIMANSHU 2025.07.23 11:48 I attest to the accuracy and integrity of this document CRM-A-2209-MA Reliance rendered by a Co CRM-A-826-2025 decided on 07.07.2025. 5. Therefore, in view of the judgments rendered by the Hon’ble Supreme Court in Intelligence (supra) as well as this Court in Satish Kumar vs. Jugal Kishor in CRM-A-2700-MA SAS Nagar, Mohali filed under Section 372 of the Cr.P.C. and entrust the same to appropriate Court for its disposal 6. The Registry is directed to send the complete paper record of the case to the learned Sessions Judge, forthwith. 7. Disposed of, accordingly. Pending miscellaneous applications, if any, also stand disposed of. 21.07.2025 himanshu (i) (ii) MA-2016 5 to be the law of the land must be held to have always been the law of the land. This conclusion also stems from the rationale that the duty of the new law but to maintain and expound the old one". (emphasis added) Reliance in this regard can also be placed on the judgment rendered by a Co-ordinate bench of this Court in 2025 decided on 07.07.2025. Therefore, in view of the judgments rendered by the Hon’ble Supreme Court in Celestium Financial (supra) Intelligence (supra) as well as this Court in Satish Kumar vs. Jugal Kishor in MA-2018 decided on 02.07.2025, the learned Sessions Judge, SAS Nagar, Mohali is directed to treat the present leave to appeal filed under Section 372 of the Cr.P.C. and entrust the same to appropriate Court for its disposal on merits. The Registry is directed to send the complete paper record of the case to the learned Sessions Judge, Disposed of, accordingly. Pending miscellaneous applications, if any, also stand disposed of. (HARPREET SINGH BRAR Whether speaking/reasoned Whether reportable to be the law of the land must be held to have always been the law of the land. This conclusion also stems from the rationale that the duty of the court is not to "pronounce a new law but to maintain and expound the old in this regard can also be placed on the judgment ordinate bench of this Court in Raj Kumar vs. Rajender Therefore, in view of the judgments rendered by the Hon’ble (supra) and Directorate of Revenue Intelligence (supra) as well as this Court in Satish Kumar vs. Jugal Kishor in 2018 decided on 02.07.2025, the learned Sessions Judge, is directed to treat the present leave to appeal as an appeal filed under Section 372 of the Cr.P.C. and entrust the same to appropriate The Registry is directed to send the complete paper-book and the record of the case to the learned Sessions Judge, SAS Nagar, Mohali, Disposed of, accordingly. Pending miscellaneous applications, if HARPREET SINGH BRAR) JUDGE Yes/No Yes/No HIMANSHU 2025.07.23 11:48 I attest to the accuracy and integrity of this document