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2025 DAILYLAW 36609 (PNJ)

C.M. ASSOCIATES PVT LIMITED v. AMIT KUMAR

CRM-M/19465/2025 · 2025-07-25

Manisha Batra

body2025

Judgment text

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CRM-M-19465 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND 123 C. M. Associates Pvt. Ltd. Amit Kumar CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA Present:- MANISHA BATRA, J. 1. 528 of Bharatiya dated 14.08.2024 Chandigarh in complaint Associates vs. Amit Kumar Instruments Act, 1881, whereby the complaint was dismissed for non prosecution. 2. upon the authority cited as Nath Tandon, 2009 (1) RCR (Criminal) 442 complaint in default amounts to acquittal available to the complainant is to file an appeal or a revision. In view thereof, learned counsel for the of Hon’ble Supreme Court in 19465-2025 (O&M) IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C. M. Associates Pvt. Ltd. Versus Kumar CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA Mr. Harshit Joon, Advocate for the petitioner. MANISHA BATRA, J. (Oral) The instant petition has been filed by the petitioner under Section Bharatiya Nagarik Suraksha Sanhita, 2023 dated 14.08.2024 passed by the learned Judicial Magistrate First Class, Chandigarh in complaint bearing No. NACT/1797 of 2024, titled as Associates vs. Amit Kumar, filed under Section 138 of the Negotiable Instruments Act, 1881, whereby the complaint was dismissed for non prosecution. Learned counsel for the petitioner, at the very outset, has relied upon the authority cited as Purushotam Mantri vs. Vinod Tandon Nath Tandon, 2009 (1) RCR (Criminal) 442 complaint in default amounts to acquittal available to the complainant is to file an appeal or a revision. In view thereof, counsel for the petitioner, while relying upon a recent pronouncement of Hon’ble Supreme Court in M/s. Celestium Financial vs. A. Gnanasekaran -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH CRM-M-19465-2025 (O&M) Date of decision: 25.07.2025 ...Petitioner ...Respondent CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA petition has been filed by the petitioner under Section Nagarik Suraksha Sanhita, 2023 seeking to quash the order passed by the learned Judicial Magistrate First Class, bearing No. NACT/1797 of 2024, titled as filed under Section 138 of the Negotiable Instruments Act, 1881, whereby the complaint was dismissed for non Learned counsel for the petitioner, at the very outset, has relied Purushotam Mantri vs. Vinod Tandon @ Hari Nath Tandon, 2009 (1) RCR (Criminal) 442 to submit that dismissal of a complaint in default amounts to acquittal of the accused and the remedy available to the complainant is to file an appeal or a revision. In view thereof, , while relying upon a recent pronouncement M/s. Celestium Financial vs. A. Gnanasekaran 2025 (O&M) 25.07.2025 Petitioner ...Respondent petition has been filed by the petitioner under Section to quash the order passed by the learned Judicial Magistrate First Class, bearing No. NACT/1797 of 2024, titled as CM filed under Section 138 of the Negotiable Instruments Act, 1881, whereby the complaint was dismissed for non- Learned counsel for the petitioner, at the very outset, has relied @ Hari to submit that dismissal of a and the remedy available to the complainant is to file an appeal or a revision. In view thereof, , while relying upon a recent pronouncement M/s. Celestium Financial vs. A. Gnanasekaran MOHAMMAD WASEEM ANSARI 2025.07.28 14:12 I attest to the accuracy and integrity of this document CRM-M-19465 Etc., 2025(3) RCR (Criminal) 208 petition as an appeal, filed under Sections 372 o with Section 413 of sent to appropriate Court for its disposal. 3. Court has interpreted Sections 372 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: 19465-2025 (O&M) Etc., 2025(3) RCR (Criminal) 208, have submitted that by directing the present as an appeal, filed under Sections 372 o with Section 413 of Bharatiya Nagarik Suraksha Sanhita, 2023 sent to appropriate Court for its disposal. 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: “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, 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 right to prefer an appeal. Thirdly, it is for this reason that the Parliamen insert the proviso to sub condition precedent to be fulfilled by the victim of an offence, which expression also includes the legal representatives of a -2- , have submitted that by directing the present as an appeal, filed under Sections 372 of Cr.P.C. (which is pari materia Bharatiya Nagarik Suraksha Sanhita, 2023), the same be ’s case (supra), the Hon’ble Supreme 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: 7.12 The reasons for the above distinction are not far to see and can be elaborated as follows: , 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 he 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 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 , 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 , have submitted that by directing the present (which is pari materia , the same be ’s case (supra), the Hon’ble Supreme 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 7.12 The reasons for the above distinction are not far to see and , the victim of a crime must have an absolute right to prefer an appeal which cannot be circumscribed by any condition 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 he 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 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 t thought it fit to 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 MOHAMMAD WASEEM ANSARI 2025.07.28 14:12 I attest to the accuracy and integrity of this document CRM-M-19465 19465-2025 (O&M) deceased victim who can prefer an appeal. On the 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 nece 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 i 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 a 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 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 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 definition of victim under Section 2(wa) of the Cr.P.C. 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 conviction is not merely a statutory righ fundamental right under Articles 14 and 21 of the Constitution. If that is so, then the right of a victim of an offence to prefer an appeal cannot be equated with the right of the State or the -3- 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 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 , 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 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 proviso to Section 372 read with the definition of victim under Section 2(wa) of the Cr.P.C. The right to prefer an appeal is no doubt a statutory right and the right to prefer an appeal by an accused against a conviction is not merely a statutory right but can also be construed to be a fundamental right under Articles 14 and 21 of the Constitution. If that is so, then the right of a victim of an offence to prefer an appeal cannot be equated with the right of the State or 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 ssary 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) ntended by the Parliament by insertion of the proviso to Section 372 of the , the Parliament has not amended Section 378 to circumscribe the victim's right to prefer an appeal just as it has n 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 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 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 proviso to Section 372 read with the The right to prefer an appeal is no doubt a statutory right and the right to prefer an appeal by an accused against a conviction is t but can also be construed to be a fundamental right under Articles 14 and 21 of the Constitution. If that is so, then the right of a victim of an offence to prefer an appeal cannot be equated with the right of the State or the MOHAMMAD WASEEM ANSARI 2025.07.28 14:12 I attest to the accuracy and integrity of this document CRM-M-19465 19465-2025 (O&M) complainant to prefer an ap filing of an appeal by the State or by a complainant against an order of acquittal cannot be read into the proviso to Section 372 of the CrPC so as to restrict the right of a victim to file an appeal on the grounds mentioned therein, when none exists. 9. In the circumstances, we find that Section 138 of the Act being in the nature of a penal provision by a deeming fiction against an accused who is said to have committed an offence under the said 50 provision, if acquitted, can be proceeded against by a victim of the said offence, namely, the person who is entitled to the proceeds of a cheque which has been dishonoured, in terms of the proviso to Section 372 of the CrPC, as a victim. As already noted, a victim of an offence could also be a complainant. In such a case, an appeal can be preferred either under the proviso to Section 372 or under Section 378 by such a victim. In the absence of the proviso to Section 372, a victim of an offence could not have filed an appeal a complainant, in which event he could maintain an appeal if special leave to appeal had been granted by the High Court and if no such special leave was granted then his appeal would not be maintainable at all. On the other hand, who may or may not be the complainant, proceeds under the proviso to Section 372 of the CrPC, then in our view, such a victim need not seek special leave to appeal from the High Court. In other words, the victim of an offence prefer an appeal, inter alia, against an order of acquittal in terms of the proviso to Section 372 without seeking any special leave to appeal from the High Court only on the grounds mentioned therein. A person who is a complainant CrPC who complains about the offence committed by a person who is charged as an accused under Section 138 of the Act, thus has 51 the right to prefer an appeal as a victim under the proviso to Section 372 of the CrPC. -4- 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 acquittal cannot be read into the proviso to Section 372 of the CrPC so as to restrict the right of a victim to file an appeal ntioned therein, when none exists. In the circumstances, we find that Section 138 of the Act being in the nature of a penal provision by a deeming fiction against an accused who is said to have committed an offence under the said ted, can be proceeded against by a victim of the said offence, namely, the person who is entitled to the proceeds of a cheque which has been dishonoured, in terms of the proviso to Section 372 of the CrPC, as a victim. As already nce could also be a complainant. In such a case, an appeal can be preferred either under the proviso to Section 372 or under Section 378 by such a victim. In the absence of the proviso to Section 372, a victim of an offence could not have filed an appeal as such, unless he was also a complainant, in which event he could maintain an appeal if special leave to appeal had been granted by the High Court and if no such special leave was granted then his appeal would not be maintainable at all. On the other hand, if the victim of an offence, who may or may not be the complainant, proceeds under the proviso to Section 372 of the CrPC, then in our view, such a victim need not seek special leave to appeal from the High Court. In other words, the victim of an offence would have the right to prefer an appeal, inter alia, against an order of acquittal in terms of the proviso to Section 372 without seeking any special leave to appeal from the High Court only on the grounds mentioned therein. A person who is a complainant under Section 200 of the CrPC who complains about the offence committed by a person who is charged as an accused under Section 138 of the Act, thus has 51 the right to prefer an appeal as a victim under the proviso to Section 372 of the CrPC. peal. Hence, the statutory rigours for filing of an appeal by the State or by a complainant against an order of acquittal cannot be read into the proviso to Section 372 of the CrPC so as to restrict the right of a victim to file an appeal In the circumstances, we find that Section 138 of the Act being in the nature of a penal provision by a deeming fiction against an accused who is said to have committed an offence under the said ted, can be proceeded against by a victim of the said offence, namely, the person who is entitled to the proceeds of a cheque which has been dishonoured, in terms of the proviso to Section 372 of the CrPC, as a victim. As already nce could also be a complainant. In such a case, an appeal can be preferred either under the proviso to Section 372 or under Section 378 by such a victim. In the absence of the proviso to Section 372, a victim of an offence s such, unless he was also a complainant, in which event he could maintain an appeal if special leave to appeal had been granted by the High Court and if no such special leave was granted then his appeal would not be if the victim of an offence, who may or may not be the complainant, proceeds under the proviso to Section 372 of the CrPC, then in our view, such a victim need not seek special leave to appeal from the High Court. would have the right to prefer an appeal, inter alia, against an order of acquittal in terms of the proviso to Section 372 without seeking any special leave to appeal from the High Court only on the grounds mentioned under Section 200 of the CrPC who complains about the offence committed by a person who is charged as an accused under Section 138 of the Act, thus has 51 the right to prefer an appeal as a victim under the proviso MOHAMMAD WASEEM ANSARI 2025.07.28 14:12 I attest to the accuracy and integrity of this document CRM-M-19465 4. 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 proviso to Section 372 of Cr.P.C. Similar observations have been made by this Court in Satish Kumar vs. Jugal Kishore (deceased) through LRs vs. Pardeep dated 02.07.2025 and in vide order dated 07.07.2025. 5. made by Hon’ble Supreme Court in the present petition remitted to the Court of learned Sessions Judge, treat the same as having been filed under Section 372 of Cr.P.C. The learned Sessions Judge, some other court of competent jurisdiction for its disposal. 19465-2025 (O&M) 10. As already noted, the proviso to Section 372 of the CrPC was inserted in the statute book only with effect from 31.12.2009. The object and reason for such insertion must be realised and must be given its full effect to by a court. In view of the aforesaid discussion, we hold that the victim of an offence has the right to prefer an appeal under the proviso to Section 372 of the CrPC, irrespective of whether he is a complainant or not. Even if the victim of an offence is a complainant, he can still proceed under the proviso to Section 372 and need not advert to sub of Section 378 of the CrPC.” On going through the authorities cited above, appeal against an order of acquittal in a proceeding under Section 138 of the Act preferred by the complainant squarely falls within the ambit of proviso to Section 372 of Cr.P.C. Similar observations have been made by this Court in Satish Kumar vs. Jugal Kishore, CRM-A- (deceased) through LRs vs. Pardeep Sharma dated 02.07.2025 and in Raj Kumar vs. Rajender, CRM vide order dated 07.07.2025. In view of the discussion as made above and the observations made by Hon’ble Supreme Court in M/s. Celestium Financi present petition along with the accompanying application is ordered to be remitted to the Court of learned Sessions Judge, treat the same as having been filed under Section 372 of Cr.P.C. The learned Sessions Judge, Chandigarh may entrust the appeal to some other court of competent jurisdiction for its disposal. -5- y noted, the proviso to Section 372 of the CrPC was inserted in the statute book only with effect from 31.12.2009. The object and reason for such insertion must be realised and must be given its full effect to by a court. In view of the aforesaid n, we hold that the victim of an offence has the right to prefer an appeal under the proviso to Section 372 of the CrPC, irrespective of whether he is a complainant or not. Even if the victim of an offence is a complainant, he can still proceed under roviso to Section 372 and need not advert to sub-section (4) of Section 378 of the CrPC.” authorities cited above, it is clear that an appeal against an order of acquittal in a proceeding under Section 138 of the Act preferred by the complainant squarely falls within the ambit of proviso to Section 372 of Cr.P.C. Similar observations have been made by this Court in -2700-MA-2018 and Ajmer Kundu Sharma, CRM-A-481-2022, vide orders Raj Kumar vs. Rajender, CRM-A-826-2025(O&M) In view of the discussion as made above and the observations M/s. Celestium Financial’s case (supra), along with the accompanying application is ordered to be remitted to the Court of learned Sessions Judge, Chandigarh with a direction to treat the same as having been filed under Section 372 of Cr.P.C. The learned may entrust the appeal to himself or assign it to some other court of competent jurisdiction for its disposal. y noted, the proviso to Section 372 of the CrPC was inserted in the statute book only with effect from 31.12.2009. The object and reason for such insertion must be realised and must be given its full effect to by a court. In view of the aforesaid n, we hold that the victim of an offence has the right to prefer an appeal under the proviso to Section 372 of the CrPC, irrespective of whether he is a complainant or not. Even if the victim of an offence is a complainant, he can still proceed under section (4) it is clear that an appeal against an order of acquittal in a proceeding under Section 138 of the Act preferred by the complainant squarely falls within the ambit of proviso to Section 372 of Cr.P.C. Similar observations have been made by this Court in Ajmer Kundu , vide orders 2025(O&M) In view of the discussion as made above and the observations ’s case (supra), along with the accompanying application is ordered to be with a direction to treat the same as having been filed under Section 372 of Cr.P.C. The learned or assign it to MOHAMMAD WASEEM ANSARI 2025.07.28 14:12 I attest to the accuracy and integrity of this document CRM-M-19465 6. Sessions Court concerned to delve into the merits of the appeal as this Court has not gone into the same. 7. inform the The petitioner Chandigarh 8. record of the case to learned Sessions Judge, 9. 25.07.2025 Waseem Ansari Whether speaking/reasoned Whether reportable 19465-2025 (O&M) 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. Learned counsel for the petitioner inform the petitioner for appearance before the Sessions Court, petitioner is directed to appear before the learned Sessions Judge, in person or through their counsel on The Registry is directed to send the complete paper record of the case to learned Sessions Judge, Disposed of. Whether speaking/reasoned Whether reportable -6- rify that it is left open for the consideration of the Sessions Court concerned to delve into the merits of the appeal as this Court petitioner, present in Court, is directed to for appearance before the Sessions Court, Chandigarh appear before the learned Sessions Judge, counsel on 29.08.2025. The Registry is directed to send the complete paper-book and record of the case to learned Sessions Judge, Chandigarh forthwith. (MANISHA BATRA) JUDGE Yes/No Yes/No rify that it is left open for the consideration of the Sessions Court concerned to delve into the merits of the appeal as this Court , present in Court, is directed to Chandigarh. appear before the learned Sessions Judge, book and MOHAMMAD WASEEM ANSARI 2025.07.28 14:12 I attest to the accuracy and integrity of this document