CRM-A-826 IN THE HIGH COURT OF PUNJAB AND HARYANA AT 158 Raj Kumar Rajender CORAM: Present: SUMEET GOEL 1. been preferred under Section 378(4) Cr.P.C., 1973 2. have perused the paper 3. leave to appeal passed by the Hon’ble Supreme Court in a case titled as Financial vs. A. Gnanasekaran Etc. 2025 INSC 804 : 2025(3) RCR (Criminal) 208, 826-2025 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Raj Kumar V/s CORAM: HON’BLE MR. JUSTICE SUMEET GOEL Mr. S.K. Yadav, Advocate for the ***** SUMEET GOEL, J. (Oral) The substantive prayer made in the present appeal reads, thus: “It is therefore, respectfully prayed that the appeal of the appellant may kindly be allowed by setting aside the impugned judgment dated 05.03.2025 passed by the ld. JMIC, Mohindergarh, District Mahendergarh in Case No.NACT/90/2020, vide which the respondent has been acquitted of the charges levelled against him in a complaint filed by the appellant u/s138 of the Negotiable Instruments Act, in the interest of justice and fair play.” Alongwith an appeal, an application for grant of leave has also been preferred under Section 378(4) Cr.P.C., 1973 I have heard learned counsel for the have perused the paper-book. Before proceeding to hear the application (for grant of special appeal)/appeal, it would be apposite to refer herein to a judgment passed by the Hon’ble Supreme Court in a case titled as Financial vs. A. Gnanasekaran Etc. 2025 INSC 804 : 2025(3) RCR (Criminal) 208, relevant whereof reads, thus: “2.1 The central issue arising for adjudication in the instant appeals is, whether an appeal would be maintainable under the proviso 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRM-A-826-2025 (O&M) Date of decision:07.07.202 ....Appellant/applicant ....Respondent HON’BLE MR. JUSTICE SUMEET GOEL for the appellant/applicant. ***** The substantive prayer made in the present appeal reads, thus: It is therefore, respectfully prayed that the appeal of the appellant may allowed by setting aside the impugned judgment dated 05.03.2025 passed by the ld. JMIC, Mohindergarh, District Mahendergarh in Case No.NACT/90/2020, vide which the respondent has been acquitted of the charges levelled against him in a complaint filed by e appellant u/s138 of the Negotiable Instruments Act, in the interest of Alongwith an appeal, an application for grant of leave has also been preferred under Section 378(4) Cr.P.C., 1973 I have heard learned counsel for the appellant/applicant and Before proceeding to hear the application (for grant of special , it would be apposite to refer herein to a judgment passed by the Hon’ble Supreme Court in a case titled as M/s Celestium Financial vs. A. Gnanasekaran Etc. 2025 INSC 804 : 2025(3) RCR relevant whereof reads, thus: “2.1 The central issue arising for adjudication in the instant appeals is, whether an appeal would be maintainable under the proviso to Section (O&M) .2025 The substantive prayer made in the present appeal reads, thus: It is therefore, respectfully prayed that the appeal of the appellant may allowed by setting aside the impugned judgment dated 05.03.2025 passed by the ld. JMIC, Mohindergarh, District Mahendergarh in Case No.NACT/90/2020, vide which the respondent has been acquitted of the charges levelled against him in a complaint filed by e appellant u/s138 of the Negotiable Instruments Act, in the interest of Alongwith an appeal, an application for grant of leave has also and Before proceeding to hear the application (for grant of special , it would be apposite to refer herein to a judgment /s Celestium Financial vs. A. Gnanasekaran Etc. 2025 INSC 804 : 2025(3) RCR “2.1 The central issue arising for adjudication in the instant appeals is, to Section AJAY KUMAR 2025.07.07 13:53 I attest to the accuracy and integrity of this document CRM-A-826 826-2025 372 of the Code of Criminal Procedure, 1973 (for short, “CrPC”) against an order of acquittal passed in a case instituted upon a private complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the Act”), by treating the complainant in such a proceeding as a victim within the meaning ascribed to the term under Section 2(wa) of the CrPC. xxx xxx xxx xxx 7.6 As already noted, the Act does not have a provision for filing of an appeal. The Act is a special enactment. In the circumstances, the CrPC, which is general in nature would have to be resorted to. The proviso to Section 372 of the CrPC considers the right point of view of a victim, which expression not only includes an injured victim but even the legal representatives of a deceased victim. The inclusion of the proviso to Section 372 of the CrPC has to be read in the context of the definition of victim in clause (wa) of Section 2 of the CrPC. The expression ‘victim’ as defined under the said provision, includes not only the person who has suffered any loss or injury caused by the reason of the act or omission for which the acc the said expression also includes his or her guardian or legal heir. 7.7 In the context of offences under the Act, particularly under Section 138 of the said Act, the complainant is clearly the aggrieved party who has suffered economic loss and injury due to the default in payment by the accused owing to the dishonour of the cheque which is deemed to be an offence under that provision. In such circumstances, it would be just, reasonable and in consonance with the spirit o complainant under the Act also qualifies as a victim within the meaning of Section 2(wa) of the CrPC. Consequently, such a complainant ought to be extended the benefit of the proviso to Section 372, thereby enabling him to maintain an appeal against an order of acquittal in his own right without having to seek special leave under Section 378(4) of the CrPC. 7.8 In the case of an offence alleged against an accused under Section 138 of the Act, we are of the view that the compla owing to the alleged dishonour of a cheque. In the circumstances, the complainant can proceed as per the proviso to Section 372 of the CrPC and he may exercise such an option and he need not then elect to proceed under Section 378 of the CrPC. 7.9 In this context, we wish to state that the proviso to Section 372 does not make a distinction between an accused who is charged of an offence under the penal law or a person who is deemed to have committed 2 372 of the Code of Criminal Procedure, 1973 (for short, “CrPC”) against an order of acquittal passed in a case instituted upon a private complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the complainant in such a proceeding as a victim within meaning ascribed to the term under Section 2(wa) of the CrPC. xxx xxx xxx xxx As already noted, the Act does not have a provision for filing of an appeal. The Act is a special enactment. In the circumstances, the CrPC, which is general in nature would have to be resorted to. The proviso to Section 372 of the CrPC considers the right of filing of an appeal from the point of view of a victim, which expression not only includes an injured victim but even the legal representatives of a deceased victim. The inclusion of the proviso to Section 372 of the CrPC has to be read in the of the definition of victim in clause (wa) of Section 2 of the CrPC. The expression ‘victim’ as defined under the said provision, includes not only the person who has suffered any loss or injury caused by the reason of the act or omission for which the accused person has been charged but the said expression also includes his or her guardian or legal heir. In the context of offences under the Act, particularly under Section 138 of the said Act, the complainant is clearly the aggrieved party who ffered economic loss and injury due to the default in payment by the accused owing to the dishonour of the cheque which is deemed to be an offence under that provision. In such circumstances, it would be just, reasonable and in consonance with the spirit of the CrPC to hold that the complainant under the Act also qualifies as a victim within the meaning of Section 2(wa) of the CrPC. Consequently, such a complainant ought to be extended the benefit of the proviso to Section 372, thereby enabling him to ain an appeal against an order of acquittal in his own right without having to seek special leave under Section 378(4) of the CrPC. In the case of an offence alleged against an accused under Section 138 of the Act, we are of the view that the complainant is indeed the victim owing to the alleged dishonour of a cheque. In the circumstances, the complainant can proceed as per the proviso to Section 372 of the CrPC and he may exercise such an option and he need not then elect to proceed In this context, we wish to state that the proviso to Section 372 does not make a distinction between an accused who is charged of an offence under the penal law or a person who is deemed to have committed 372 of the Code of Criminal Procedure, 1973 (for short, “CrPC”) against an order of acquittal passed in a case instituted upon a private complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, “the complainant in such a proceeding as a victim within As already noted, the Act does not have a provision for filing of an appeal. The Act is a special enactment. In the circumstances, the CrPC, which is general in nature would have to be resorted to. The proviso to of filing of an appeal from the point of view of a victim, which expression not only includes an injured victim but even the legal representatives of a deceased victim. The inclusion of the proviso to Section 372 of the CrPC has to be read in the of the definition of victim in clause (wa) of Section 2 of the CrPC. The expression ‘victim’ as defined under the said provision, includes not only the person who has suffered any loss or injury caused by the reason used person has been charged but In the context of offences under the Act, particularly under Section 138 of the said Act, the complainant is clearly the aggrieved party who ffered economic loss and injury due to the default in payment by the accused owing to the dishonour of the cheque which is deemed to be an offence under that provision. In such circumstances, it would be just, f the CrPC to hold that the complainant under the Act also qualifies as a victim within the meaning of Section 2(wa) of the CrPC. Consequently, such a complainant ought to be extended the benefit of the proviso to Section 372, thereby enabling him to ain an appeal against an order of acquittal in his own right without In the case of an offence alleged against an accused under Section inant is indeed the victim owing to the alleged dishonour of a cheque. In the circumstances, the complainant can proceed as per the proviso to Section 372 of the CrPC and he may exercise such an option and he need not then elect to proceed In this context, we wish to state that the proviso to Section 372 does not make a distinction between an accused who is charged of an offence under the penal law or a person who is deemed to have committed AJAY KUMAR 2025.07.07 13:53 I attest to the accuracy and integrity of this document CRM-A-826 826-2025 an offence under Section 138 of the Act. Symmetrical to a victim of an offence, a victim of a deemed offence under Section 138 of the Act also has the right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. When viewed from the perspective of an offence under any penal law or a deemed offence under Section 138 of the Act, the right to file an appeal is not circumscribed by any condition as such, so long as the appeal can be premis 372 which is the right to file an appeal by a victim, provided the circumstances which enable such a victim to file an appeal are met. The complainant under Section 138 is the victim who must also have the right to prefer an appeal under the said provision. Merely because the proceeding under Section 138 of the Act commences with the filing of a complaint under Section 200 of the CrPC by a complainant, he does not cease to be a victim inasmuch as it is only a victim cheque who can file a complaint. Thus, under Section 138 of the Act both the complainant as well as the victim are one and the same person. 7.10 Section 378 of the CrPC is a specific provision dealing with appeals. Sub-section (3) of Section 378 states that no appeal to the High Court under sub-section (1) or sub with the leave of the Court, with which we are not concerned in the instant case. However, sub-section (4) of Section 378 is pertinent. an order of acquittal is passed in any case instituted upon a complaint and the High Court, on an application made to it by the complainant in that behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. The limitation period for seeking special leave to appeal is six months where the complainant is a public servant and sixty days in every other case, computed from the date of the order of acquittal. Sub that if, in any case, the application under sub special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub section (2) of Section 378. 7.11 A reading of section 378 would clearly indicate that in case the complainant intends to file an appeal against the order of acquittal, his right is circumscribed by certain conditions precedent. When an appeal is to be preferred by a complainant, th complainant is also the victim or only an informant. If the complainant is not a victim and the case is instituted upon a complaint, then sub 3 of the Act. Symmetrical to a victim of an offence, a victim of a deemed offence under Section 138 of the Act also has the right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. When viewed from the perspective of an offence under any penal law or a deemed offence under Section 138 of the Act, the right to file an appeal is not circumscribed by any condition as such, so long as the appeal can be premised in accordance with proviso to Section 372 which is the right to file an appeal by a victim, provided the circumstances which enable such a victim to file an appeal are met. The complainant under Section 138 is the victim who must also have the right prefer an appeal under the said provision. Merely because the proceeding under Section 138 of the Act commences with the filing of a complaint under Section 200 of the CrPC by a complainant, he does not cease to be a victim inasmuch as it is only a victim of a dishonour of cheque who can file a complaint. Thus, under Section 138 of the Act both the complainant as well as the victim are one and the same person. Section 378 of the CrPC is a specific provision dealing with ection 378 states that no appeal to the High section (1) or sub-section (2) shall be entertained except with the leave of the Court, with which we are not concerned in the instant section (4) of Section 378 is pertinent. It states that if an order of acquittal is passed in any case instituted upon a complaint and the High Court, on an application made to it by the complainant in that behalf, grants special leave to appeal from the order of acquittal, the esent such an appeal to the High Court. The limitation period for seeking special leave to appeal is six months where the complainant is a public servant and sixty days in every other case, computed from the date of the order of acquittal. Sub-Section (6) states that if, in any case, the application under sub-section (4) for grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub A reading of section 378 would clearly indicate that in case the complainant intends to file an appeal against the order of acquittal, his right is circumscribed by certain conditions precedent. When an appeal is to be preferred by a complainant, the first question is, whether, the complainant is also the victim or only an informant. If the complainant is not a victim and the case is instituted upon a complaint, then sub-section of the Act. Symmetrical to a victim of an offence, a victim of a deemed offence under Section 138 of the Act also has the right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing an inadequate compensation. When viewed from the perspective of an offence under any penal law or a deemed offence under Section 138 of the Act, the right to file an appeal is not circumscribed by any condition as such, so ed in accordance with proviso to Section 372 which is the right to file an appeal by a victim, provided the circumstances which enable such a victim to file an appeal are met. The complainant under Section 138 is the victim who must also have the right prefer an appeal under the said provision. Merely because the proceeding under Section 138 of the Act commences with the filing of a complaint under Section 200 of the CrPC by a complainant, he does not of a dishonour of cheque who can file a complaint. Thus, under Section 138 of the Act both Section 378 of the CrPC is a specific provision dealing with ection 378 states that no appeal to the High section (2) shall be entertained except with the leave of the Court, with which we are not concerned in the instant It states that if an order of acquittal is passed in any case instituted upon a complaint and the High Court, on an application made to it by the complainant in that behalf, grants special leave to appeal from the order of acquittal, the esent such an appeal to the High Court. The limitation period for seeking special leave to appeal is six months where the complainant is a public servant and sixty days in every other case, states section (4) for grant of special leave to appeal from an order of acquittal is refused, no appeal section (1) or under sub- A reading of section 378 would clearly indicate that in case the complainant intends to file an appeal against the order of acquittal, his right is circumscribed by certain conditions precedent. When an appeal is e first question is, whether, the complainant is also the victim or only an informant. If the complainant is section AJAY KUMAR 2025.07.07 13:53 I attest to the accuracy and integrity of this document CRM-A-826 826-2025 (4) requires that the complainant must seek special leave to appeal from an order of acquittal from the High Court. As noted under sub if the application under sub-section (4) for grant of special leave to appeal from the order of acquittal is refused, no appeal from that order of acquittal would lie, inter alia, However, if the complainant is also a victim, he could proceed under the proviso to Section 372, in which case the rigour of sub Section 378, which mandates obtaining special leave to appeal, would not arise at all, as he can prefer an appeal as a victim and as a matter of right. Thus, if a victim who is a complainant, proceeds under Section 378, the necessity of seeking special leave to appeal would arise but if a victim whether he is a complainant or no Section 372, then the mandate of seeking special leave to appeal would not arise. xxx xxx xxx xxx 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 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 ca 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 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 accuse who is said to have committed an offence under the said 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 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 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 wa 4 (4) requires that the complainant must seek special leave to appeal from an order of acquittal from the High Court. As noted under sub-section (6), section (4) for grant of special leave to appeal from the order of acquittal is refused, no appeal from that order of acquittal would lie, inter alia, under sub-section (1) of Section 378. However, if the complainant is also a victim, he could proceed under the proviso to Section 372, in which case the rigour of sub-section (4) of Section 378, which mandates obtaining special leave to appeal, would not rise at all, as he can prefer an appeal as a victim and as a matter of right. Thus, if a victim who is a complainant, proceeds under Section 378, the necessity of seeking special leave to appeal would arise but if a victim whether he is a complainant or not, files an appeal in terms of proviso to Section 372, then the mandate of seeking special leave to appeal would not xxx xxx xxx xxx The right to prefer an appeal is no doubt a statutory right and the er 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 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 PC so as to restrict the right of a victim to file an appeal on the grounds mentioned 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 accuse who is said to have committed an offence under the said 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 roviso 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 (4) requires that the complainant must seek special leave to appeal from section (6), section (4) for grant of special leave to appeal from the order of acquittal is refused, no appeal from that order of section (1) of Section 378. However, if the complainant is also a victim, he could proceed under the section (4) of Section 378, which mandates obtaining special leave to appeal, would not rise at all, as he can prefer an appeal as a victim and as a matter of right. Thus, if a victim who is a complainant, proceeds under Section 378, the necessity of seeking special leave to appeal would arise but if a victim t, files an appeal in terms of proviso to Section 372, then the mandate of seeking special leave to appeal would not The right to prefer an appeal is no doubt a statutory right and the er 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 nnot 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 acquittal cannot be read into the proviso to Section 372 of the PC so as to restrict the right of a victim to file an appeal on the grounds 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 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 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 roviso 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 s granted then AJAY KUMAR 2025.07.07 13:53 I attest to the accuracy and integrity of this document CRM-A-826 4. It is irrefutably established by the au Hon'ble Supreme Court in against an order of acquittal in a proceeding under Section 138 of the Negotiable Instruments complainant, falls squarely within the ambit of the proviso to Section 372 of the Cr.P.C/ Section 413 BNSS. This legal position is predicated upon the undeniable fact that a unquestionably satisfies the statutory definition of a under the Cr.P.C., thereby vesting in to prefer an appeal under the aforesaid proviso to Section 372 Cr.P.C. 826-2025 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 Hi 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 the right to prefer an appeal as a victim under the proviso to Section 372 of the CrPC. 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 mus 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 378 of the CrPC. xxx xxx xxx xxx It is irrefutably established by the au Hon'ble Supreme Court in Celestium Financial against an order of acquittal in a proceeding under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter 'NI Act'), preferred by the complainant, falls squarely within the ambit of the proviso to Section 372 of the Cr.P.C/ Section 413 BNSS. This legal position is predicated upon the undeniable fact that a ‘complainant’ unquestionably satisfies the statutory definition of a under the Cr.P.C., thereby vesting in such complainant to prefer an appeal under the aforesaid proviso to Section 372 Cr.P.C. 5 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 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 eal as a victim under the proviso to Section 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-section (4) of Section xxx xxx xxx xxx” It is irrefutably established by the authoritative pronouncement of the Celestium Financial (supra) that an appeal against an order of acquittal in a proceeding under Section 138 of the Act, 1881 (hereinafter 'NI Act'), preferred by the complainant, falls squarely within the ambit of the proviso to Section 372 of the Cr.P.C/ Section 413 BNSS. This legal position is predicated upon the in a Section 138 NI Act case unquestionably satisfies the statutory definition of a ‘victim’ as contemplated such complainant the unequivocal right to prefer an appeal under the aforesaid proviso to Section 372 Cr.P.C. 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 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 gh 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 eal as a victim under the proviso to Section 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 t 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 section (4) of Section xxx” thoritative pronouncement of the (supra) that an appeal against an order of acquittal in a proceeding under Section 138 of the Act, 1881 (hereinafter 'NI Act'), preferred by the complainant, falls squarely within the ambit of the proviso to Section 372 of the Cr.P.C/ Section 413 BNSS. This legal position is predicated upon the NI Act case as contemplated the unequivocal right to prefer an appeal under the aforesaid proviso to Section 372 Cr.P.C. AJAY KUMAR 2025.07.07 13:53 I attest to the accuracy and integrity of this document CRM-A-826 Consequently, th Section 378 of the Cr.P.C., accompanied by an application for leave to appeal under Section 378(4) thereof, is, in light of the (supra) dictum, rendered fundamentally unsustainab in its current procedural posture. 5. applicability of the precedent laid down in stands excluded, owing to the fact that the factual matrix pertai anterior to the pronouncement in does not find any weight in the said contention as, t landscape is unequivocally settled on the distinct operational modalities of legislative enactm canon of statutory construction that the force and effect of a legislative enactment are, as a general rule, deemed prospective in their application, unless a clear and unequivocal legislative inte articulated within its provisions. This principle safeguards against the unsettling of vested rights and the imposition of unforeseen liabilities. Conversely, a definitive its very nature, operat otherwise. judicial review: a judgment serves not as an act of legislative creation, but rather as an authoritative exposition merely illuminates the true import and construction of a statute or provision, declaring its inherent meaning as it ought to have been understood and applied ab 826-2025 Consequently, the instant appeal, having been erroneously preferred under Section 378 of the Cr.P.C., accompanied by an application for leave to appeal under Section 378(4) thereof, is, in light of the (supra) dictum, rendered fundamentally unsustainab in its current procedural posture. An attempt has been made at the bar to contend that the applicability of the precedent laid down in stands excluded, owing to the fact that the factual matrix pertai anterior to the pronouncement in Celestium Financial does not find any weight in the said contention as, t landscape is unequivocally settled on the distinct operational modalities of legislative enactments and judicial pronouncements. It is a well canon of statutory construction that the force and effect of a legislative enactment are, as a general rule, deemed prospective in their application, unless a clear and unequivocal legislative inte articulated within its provisions. This principle safeguards against the unsettling of vested rights and the imposition of unforeseen liabilities. Conversely, a definitive pronouncement emanating from the Apex s very nature, operates retrospectively, unless specifically directed otherwise. This fundamental distinction inheres in the very essence of judicial review: a judgment serves not as an act of legislative creation, but rather as an authoritative exposition and clarification of the existing law. It merely illuminates the true import and construction of a statute or provision, declaring its inherent meaning as it ought to have been understood and ab initio, from the precise moment of its legislative g 6 e instant appeal, having been erroneously preferred under Section 378 of the Cr.P.C., accompanied by an application for leave to appeal under Section 378(4) thereof, is, in light of the Celestium Financial (supra) dictum, rendered fundamentally unsustainable and not maintainable An attempt has been made at the bar to contend that the applicability of the precedent laid down in Celestium Financial (supra) stands excluded, owing to the fact that the factual matrix pertains to a period Celestium Financial (supra). This Court does not find any weight in the said contention as, the jurisprudential landscape is unequivocally settled on the distinct operational modalities of ents and judicial pronouncements. It is a well-established canon of statutory construction that the force and effect of a legislative enactment are, as a general rule, deemed prospective in their application, unless a clear and unequivocal legislative intent for retroactivity is expressly articulated within its provisions. This principle safeguards against the unsettling of vested rights and the imposition of unforeseen liabilities. pronouncement emanating from the Apex court, by es retrospectively, unless specifically directed This fundamental distinction inheres in the very essence of judicial review: a judgment serves not as an act of legislative creation, but and clarification of the existing law. It merely illuminates the true import and construction of a statute or provision, declaring its inherent meaning as it ought to have been understood and , from the precise moment of its legislative genesis. e instant appeal, having been erroneously preferred under Section 378 of the Cr.P.C., accompanied by an application for leave to Celestium Financial le and not maintainable An attempt has been made at the bar to contend that the (supra) ns to a period (supra). This Court he jurisprudential landscape is unequivocally settled on the distinct operational modalities of established canon of statutory construction that the force and effect of a legislative enactment are, as a general rule, deemed prospective in their application, nt for retroactivity is expressly articulated within its provisions. This principle safeguards against the unsettling of vested rights and the imposition of unforeseen liabilities. court, by es retrospectively, unless specifically directed This fundamental distinction inheres in the very essence of judicial review: a judgment serves not as an act of legislative creation, but and clarification of the existing law. It merely illuminates the true import and construction of a statute or provision, declaring its inherent meaning as it ought to have been understood and enesis. AJAY KUMAR 2025.07.07 13:53 I attest to the accuracy and integrity of this document CRM-A-826 Consequently, its retrospective application becomes a jurisprudential imperative. 5.1. particularly one articulating a seminal principle of law, extends its pervasive influence t various adjudicatory understanding that what has been authoritatively enunciated is not a novel legal precept, but rather the intrinsic meaning of the ex-ante, from the very inception of the concerned statute or provision. Indeed, that which has been authoritatively declared to constitute the terrae must, by jurisprudential necessity, be deemed to have always been the lex terrae rationale that the law but to maintain and expound the old one." The judicial function, therefore, is inherently one of discovery, as a legislator latent meaning of the law. Th enduring truth, not the genesis of a novel legal reality. judgment passed by the Hon’ble Supreme Court titled as Revenue Intelligence Vs. Raj Kumar Arora: 2025 INSC 498; while reiterating Apex Court Vs. Saurashtra Kutch St observed thus: 826-2025 Consequently, its retrospective application becomes a jurisprudential imperative. The logical corollary of this doctrine is that a judicial decision, particularly one articulating a seminal principle of law, extends its pervasive influence to all matters, irrespective of their stage of pendency across various adjudicatory fora. This is predicated upon the profound understanding that what has been authoritatively enunciated is not a novel legal precept, but rather the intrinsic meaning of the ante, from the very inception of the concerned statute or provision. Indeed, that which has been authoritatively declared to constitute the must, by jurisprudential necessity, be deemed to have always been the ae. This profound conclusion is further buttressed by the venerable rationale that the raison d'être of the judiciary is not to "pronounce a new law but to maintain and expound the old one." The judicial function, therefore, is inherently one of discovery, as a legislator proprio motu, but as an expositor, meticulously unearthing the latent meaning of the law. The court's declaration is thus a enduring truth, not the genesis of a novel legal reality. At this juncture it would be germane to refer herein to a judgment passed by the Hon’ble Supreme Court titled as Revenue Intelligence Vs. Raj Kumar Arora: 2025 INSC 498; while reiterating the ratio decidendi of an earlier pronouncement Apex Court in a case titled as Assistant Commissioner, Income Tax, Rajkot Vs. Saurashtra Kutch Stock Exchange Limited observed thus: 7 Consequently, its retrospective application becomes a jurisprudential The logical corollary of this doctrine is that a judicial decision, particularly one articulating a seminal principle of law, extends its pervasive o all matters, irrespective of their stage of pendency across . This is predicated upon the profound understanding that what has been authoritatively enunciated is not a novel legal precept, but rather the intrinsic meaning of the law which has subsisted ante, from the very inception of the concerned statute or provision. Indeed, that which has been authoritatively declared to constitute the must, by jurisprudential necessity, be deemed to have always been the . This profound conclusion is further buttressed by the venerable of the judiciary is not to "pronounce a new law but to maintain and expound the old one." The judicial function, not of creation; the judge acts not , but as an expositor, meticulously unearthing the e court's declaration is thus a recognition of an enduring truth, not the genesis of a novel legal reality. At this juncture it would be germane to refer herein to a judgment passed by the Hon’ble Supreme Court titled as Directorate of Revenue Intelligence Vs. Raj Kumar Arora: 2025 INSC 498; wherein of an earlier pronouncement of the Assistant Commissioner, Income Tax, Rajkot ck Exchange Limited: 2008 (14) SCC 171, it was Consequently, its retrospective application becomes a jurisprudential The logical corollary of this doctrine is that a judicial decision, particularly one articulating a seminal principle of law, extends its pervasive o all matters, irrespective of their stage of pendency across . This is predicated upon the profound understanding that what has been authoritatively enunciated is not a novel law which has subsisted ante, from the very inception of the concerned statute or provision. Indeed, that which has been authoritatively declared to constitute the lex must, by jurisprudential necessity, be deemed to have always been the . This profound conclusion is further buttressed by the venerable of the judiciary is not to "pronounce a new law but to maintain and expound the old one." The judicial function, judge acts not , but as an expositor, meticulously unearthing the recognition of an At this juncture it would be germane to refer herein to a Directorate of wherein of the Assistant Commissioner, Income Tax, Rajkot it was AJAY KUMAR 2025.07.07 13:53 I attest to the accuracy and integrity of this document CRM-A-826 6. the consideration of an 826-2025 “94. xxxxxxxxxxxxxxxxxxxxxxxxxxxxx. According to this theory the function of the court to pronounce a “new rule” but to maintain and expound the “old one”. Therefore, if the subsequent decision alters or overrules the earlier one, it cannot be said to have made a new law. The correct principle of law is just discovered and applied retrospectively. In other words, if in a given situation an earlier decision of the court operated for quite some time and it is overruled by a subsequent decision, the decision rendered subsequently would have retrospective eff would serve to clarify the legal position which was not clearly understood earlier. Any transaction would then be covered by the law declared by the overruling decision. The overruling is generally retrospective with the only caveat being that matters that are res judicatae or accounts that have been settled in the meantime would not be disturbed. The relevant observations made by this Court are reproduced hereinbelow: “35. In our judgment, it is also well settled that a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the court to pronounce a “new rule” but to maintain and expound the “old one”. In other words, Judges do not make law, they only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of t operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood. 36. Salmond in his well-known work states: “[T]he theory of case law is that a merely declares it; and the overruling of a previous decision is a declaration that the supposed rule never was law. Hence any intermediate transactions made on the strength of the supposed rule are governed by the law establis decision. The overruling is retrospective, except as regards matters that are res judicatae or accounts that have been settled in the meantime.” It is imperative to acknowledge that the parameters governing the consideration of an appeal under the proviso to Section 372 Cr.P.C./ 8 xxxxxxxxxxxxxxxxxxxxxxxxxxxxx. According to this theory, it is not the function of the court to pronounce a “new rule” but to maintain and expound the “old one”. Therefore, if the subsequent decision alters or overrules the earlier one, it cannot be said to have made a new law. The just discovered and applied retrospectively. In other words, if in a given situation an earlier decision of the court operated for quite some time and it is overruled by a subsequent decision, the decision rendered subsequently would have retrospective effect and would serve to clarify the legal position which was not clearly understood earlier. Any transaction would then be covered by the law declared by the overruling decision. The overruling is generally retrospective with the ers that are res judicatae or accounts that have been settled in the meantime would not be disturbed. The relevant observations made by this Court are reproduced hereinbelow: “35. In our judgment, it is also well settled that a judicial decision ospectively. According to Blackstonian theory, it is not the function of the court to pronounce a “new rule” but to maintain and expound the “old one”. In other words, Judges do not make law, they only discover or find the correct law. The law has always een the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of the court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood. known work states: “[T]he theory of case law is that a judge does not make law; he merely declares it; and the overruling of a previous decision is a declaration that the supposed rule never was law. Hence any intermediate transactions made on the strength of the supposed rule are governed by the law established in the overruling decision. The overruling is retrospective, except as regards matters that are res judicatae or accounts that have been settled in the It is imperative to acknowledge that the parameters governing appeal under the proviso to Section 372 Cr.P.C./ , it is not the function of the court to pronounce a “new rule” but to maintain and expound the “old one”. Therefore, if the subsequent decision alters or overrules the earlier one, it cannot be said to have made a new law. The just discovered and applied retrospectively. In other words, if in a given situation an earlier decision of the court operated for quite some time and it is overruled by a subsequent decision, ect and would serve to clarify the legal position which was not clearly understood earlier. Any transaction would then be covered by the law declared by the overruling decision. The overruling is generally retrospective with the ers that are res judicatae or accounts that have been settled in the meantime would not be disturbed. The relevant “35. In our judgment, it is also well settled that a judicial decision ospectively. According to Blackstonian theory, it is not the function of the court to pronounce a “new rule” but to maintain and expound the “old one”. In other words, Judges do not make law, they only discover or find the correct law. The law has always een the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. To he court operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was judge does not make law; he merely declares it; and the overruling of a previous decision is a declaration that the supposed rule never was law. Hence any intermediate transactions made on the strength of the supposed hed in the overruling decision. The overruling is retrospective, except as regards matters that are res judicatae or accounts that have been settled in the It is imperative to acknowledge that the parameters governing appeal under the proviso to Section 372 Cr.P.C./ AJAY KUMAR 2025.07.07 13:53 I attest to the accuracy and integrity of this document CRM-A-826 Section 413 BNSS and those applicable to an appeal under Section 378(4) Cr.P.C./419(4) BNSS are distinctly dissimilar, with the former possessing a markedly wider amplitude in scope as compared to the latte Notwithstanding the procedural non this Court is of the considered view that a summary dismissal solely on a procedural technicality would constitute an unwarranted wastage of precious judicial time and resources a proceedings. Embracing the cardinal jurisprudential principle that the cause of substantive justice must unequivocally prevail over procedural technicalities, this Court is firmly convinced that the ends of justic be more adequately served by adopting a pragmatic approach. Rather than dismissing the appeal in limine on a mere procedural infirmity, this Court deems it appropriate to relegate the matter to the concerned Sessions Court, with a clear direction t applications, be treated and adjudicated as an appeal validly preferred under the proviso to Section 372 Cr.P.C. This approach is consistent with the fundamental objective of any judicial system, which is to substantive justice, and not to become entangled in the labyrinthine complexities of procedural intricacies that may, on occasion, obscure the chariot of justice rather than facilitate its motion. 7. appeal, along with accomp (i) remitted to the learned Sessions Judge, Mahindergarh at Narnaul with a direction to treat the same as having been filed under Section 372 of Cr.P.C., 826-2025 Section 413 BNSS and those applicable to an appeal under Section 378(4) Cr.P.C./419(4) BNSS are distinctly dissimilar, with the former possessing a markedly wider amplitude in scope as compared to the latte Notwithstanding the procedural non-maintainability of the instant appeal, this Court is of the considered view that a summary dismissal solely on a procedural technicality would constitute an unwarranted wastage of precious judicial time and resources already expended in the initiation of these proceedings. Embracing the cardinal jurisprudential principle that the cause of substantive justice must unequivocally prevail over procedural technicalities, this Court is firmly convinced that the ends of justic be more adequately served by adopting a pragmatic approach. Rather than dismissing the appeal in limine on a mere procedural infirmity, this Court deems it appropriate to relegate the matter to the concerned Sessions Court, with a clear direction that the present filing, along with all appended applications, be treated and adjudicated as an appeal validly preferred under the proviso to Section 372 Cr.P.C. This approach is consistent with the fundamental objective of any judicial system, which is to substantive justice, and not to become entangled in the labyrinthine complexities of procedural intricacies that may, on occasion, obscure the chariot of justice rather than facilitate its motion. Ergo; in view of the prevenient ra appeal, along with accompanying application(s), The present appeal, along with remitted to the learned Sessions Judge, Mahindergarh at Narnaul with a direction to treat the same as having been filed under Section 372 of Cr.P.C., 9 Section 413 BNSS and those applicable to an appeal under Section 378(4) Cr.P.C./419(4) BNSS are distinctly dissimilar, with the former possessing a markedly wider amplitude in scope as compared to the latte maintainability of the instant appeal, this Court is of the considered view that a summary dismissal solely on a procedural technicality would constitute an unwarranted wastage of precious lready expended in the initiation of these proceedings. Embracing the cardinal jurisprudential principle that the cause of substantive justice must unequivocally prevail over procedural technicalities, this Court is firmly convinced that the ends of justice would be more adequately served by adopting a pragmatic approach. Rather than dismissing the appeal in limine on a mere procedural infirmity, this Court deems it appropriate to relegate the matter to the concerned Sessions Court, hat the present filing, along with all appended applications, be treated and adjudicated as an appeal validly preferred under the proviso to Section 372 Cr.P.C. This approach is consistent with the fundamental objective of any judicial system, which is to deliver real and substantive justice, and not to become entangled in the labyrinthine complexities of procedural intricacies that may, on occasion, obscure the chariot of justice rather than facilitate its motion. in view of the prevenient ratiocination; the present anying application(s), is disposed of as hereunder with accompanying application(s) remitted to the learned Sessions Judge, Mahindergarh at Narnaul with a direction to treat the same as having been filed under Section 372 of Cr.P.C., Section 413 BNSS and those applicable to an appeal under Section 378(4) Cr.P.C./419(4) BNSS are distinctly dissimilar, with the former possessing a markedly wider amplitude in scope as compared to the latter. maintainability of the instant appeal, this Court is of the considered view that a summary dismissal solely on a procedural technicality would constitute an unwarranted wastage of precious lready expended in the initiation of these proceedings. Embracing the cardinal jurisprudential principle that the cause of substantive justice must unequivocally prevail over procedural e would be more adequately served by adopting a pragmatic approach. Rather than dismissing the appeal in limine on a mere procedural infirmity, this Court deems it appropriate to relegate the matter to the concerned Sessions Court, hat the present filing, along with all appended applications, be treated and adjudicated as an appeal validly preferred under the proviso to Section 372 Cr.P.C. This approach is consistent with the deliver real and substantive justice, and not to become entangled in the labyrinthine complexities of procedural intricacies that may, on occasion, obscure the the present is disposed of as hereunder: ), is remitted to the learned Sessions Judge, Mahindergarh at Narnaul with a direction to treat the same as having been filed under Section 372 of Cr.P.C., AJAY KUMAR 2025.07.07 13:53 I attest to the accuracy and integrity of this document CRM-A-826 1973/Section 413 of BNSS, 2023. The said learned Sessions Judge may entrust the appeal to himself or jurisdiction for its disposal, as per law. (ii) of the appeal is left open for consid shall indubitably observation made hereinabove. (iii). records of the present Sessions Judge. July 07, 202 Ajay 826-2025 1973/Section 413 of BNSS, 2023. The said learned Sessions Judge may entrust the appeal to himself or assign it to another Court of competent jurisdiction for its disposal, as per law. Needless to clarify that this Court has not delved into the merits of the appeal as also along with accompanying application(s) is left open for consideration of the concerned learned Sessions Court, which indubitably adjudicate the same without getting influenced by any observation made hereinabove. The Registry is directed to send, expeditiously, the complete records of the present appeal (including the paper Sessions Judge. , 2025 Whether speaking/reasoned: Whether reportable: 10 1973/Section 413 of BNSS, 2023. The said learned Sessions Judge may assign it to another Court of competent Needless to clarify that this Court has not delved into the merits along with accompanying application(s); and the same eration of the concerned learned Sessions Court, which adjudicate the same without getting influenced by any The Registry is directed to send, expeditiously, the complete (including the paper-book) to the said learned (SUMEET GOEL) JUDGE Yes/No Yes/No 1973/Section 413 of BNSS, 2023. The said learned Sessions Judge may assign it to another Court of competent Needless to clarify that this Court has not delved into the merits and the same eration of the concerned learned Sessions Court, which adjudicate the same without getting influenced by any The Registry is directed to send, expeditiously, the complete book) to the said learned AJAY KUMAR 2025.07.07 13:53 I attest to the accuracy and integrity of this document