CRA-AS-262-2023 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRA-AS-262-2023 236 Date of Decision: 25.09.2025 AVINASH CHANDER KAMRA ......Appellant Verus GURINDER KAUR ......Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Amit Chaudhary, Advocate for the appellant. Mr. Harinder Sharma, Advocate for the respondent. *** ANOOP CHITKARA J. Criminal Complaint No. 1165/2017, under Sec(on 138 of the Nego(able Instruments Act, (tled as “Avinash Chander Kamra Vs. Gurinder Kaur” decided on 14.10.2019 CNR No. PBPT03001989-2017 1. Feeling aggrieved by the trial court's judgment, dismissing the complaint on merits, and acqui;ng the accused/respondent, the complainant had come up before this Court by filing the above-men(oned appeal. 2. Vide order dated 04.05.2023, the appeal was admi>ed. 3. Counsel for the appellant prays for transfer of appeal to the first Appellate Court in view of judgment of Hon’ble Supreme Court passed in “Celes(um Financial v. A. Gnanasekaran, 2025(3) RCR(Criminal) 208, decided on 08.04.2025”. 4. In Celes(um Financial v. A. Gnanasekaran, 2025(3) RCR(Criminal) 208, decided on 08.04.2025, Hon’ble Supreme Court holds, [7.8] In the case of an offence alleged against an accused under Sec(on 138 of the Act, we are of the view that the complainant is indeed the vic(m owing to the alleged dishonour of a cheque. In the circumstances, the complainant can proceed as per the proviso to Sec(on 372 of the CrPC and he may exercise such an op(on and he need not then elect to proceed under Sec(on 378 of the CrPC. [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 convic(on is not merely a statutory right but can also be construed to be a 1 JYOTI 2025.09.29 09:35 I attest to the accuracy and integrity of this order/judgment. CRA-AS-262-2023 fundamental right under Ar(cles 14 and 21 of the Cons(tu(on. If that is so, then the right of a vic(m 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 acqui>al cannot be read into the proviso to Sec(on 372 of the CrPC so as to restrict the right of a vic(m to file an appeal on the grounds men(oned therein, when none exists. [10]. As already noted, the proviso to Sec(on 372 of the CrPC was inserted in the statute book only with effect from 31.12.2009. The object and reason for such inser(on must be realised and must be given its full effect to by a court. In view of the aforesaid discussion, we hold that the vic(m of an offence has the right to prefer an appeal under the proviso to Sec(on 372 of the CrPC, irrespec(ve of whether he is a complainant or not. Even if the vic(m of an offence is a complainant, he can s(ll proceed under the proviso to Sec(on 372 and need not advert to sub-sec(on (4) of Sec(on 378 of the CrPC. 5. In BNSS, 2023, S. 413 is analogous to S. 372 CrPC, 1973, and thus the ra(o of Celes(um Financial shall apply. 6. However, the complainant should not face the burden of filing an appeal again before the Sessions Court because the law has been interpreted recently. Therefore, in the interest of Equity, Jus(ce, and Fair play, it would be appropriate to refer this ma>er to the Sessions Court, where it will be registered as an Appeal under the Proviso to S. 372 CrPC/413 BNSS, 2023, as applicable. If there is any objec(on regarding whether it is an appeal under the CrPC or BNSS, it shall be registered under the Proviso to S. 413 BNSS, 2023, because the CrPC, 1973, has been repealed. 7. Given above, the Registry is to send this file along with the Lower Court’s Record, if any, to the concerned Sessions Division. Appeal is disposed of in the terms men(oned above. All pending applica(on(s), if any, stand closed. (ANOOP CHITKARA) JUDGE 25.09.2025 Jyo-II Whether speaking/reasoned: Yes Whether reportable: No. 2 JYOTI 2025.09.29 09:35 I attest to the accuracy and integrity of this order/judgment.