262 IN THE HIGH COURT OF PUNJAB AND HARYANA CHANDIGARH CRM-A-1556-2019 (O&M) Date of Decision: 07.07.2025 SURESH KUMAR …Applicant V/S SAHIB SINGH …Respondent CORAM: HON’BLE MR. JUSTICE HARPREET SINGH BRAR Present: Mr. Balbir Kumar Saini, Advocate for the applicant. **** HARPREET SINGH BRAR J. (Oral) 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 against the judgment dated 15.03.2017 vide which case of the complainant was dismissed in default for want of prosecution by learned Judicial Magistrate Ist Class, Moga in a case stemming from complaint dated 04.11.2014 filed under Section 138 read with Section 142 of Negotiable Instruments Act, 1881 (hereinafter to be referred as ‘NI Act’). 2. The complaint(supra) was filed on the ground of dishonour of cheque amounting to Rs. 7,00,000/-. However, the learned trial Court dismissed the case of the complainant for want of prosecution vide order/judgment dated 15.03.2017. 3. The Hon’ble Supreme Court in 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 372 of Cr.P.C. before the Court of Sessions. Speaking through Justice B.V. Nagarathna, the following was held: AJAY GOSWAMI 2025.07.10 17:25 I attest to the accuracy and integrity of this document CRM-A-1556-2019 (O&M) -2- “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 right to prefer an appeal. 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 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 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 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 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 be victim in terms of the proviso to Section 372 read with the definition of victim under Section 2(wa) of the CrPC.” 4. In view of the judgment rendered by the Hon’ble Supreme Court in Celestium Financial (supra) and this Court in Satish Kumar vs. Jugal AJAY GOSWAMI 2025.07.10 17:25 I attest to the accuracy and integrity of this document CRM-A-1556-2019 (O&M) -3- Kishor in CRM-A-2700-MA-2018 decided on 02.07.2025, the learned Sessions Judge, Moga 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 Court for its disposal on merits, expeditiously. 5. The Registry is directed to send the complete paperbook and the record of the case to the learned Sessions Judge, Moga forthwith. 6. Disposed of accordingly. 7. Pending miscellaneous applications, if any, also stand disposed of. (HARPREET SINGH BRAR) 07.07.2025 JUDGE Ajay Goswami Whether speaking/reasoned Yes/No Whether reportable Yes/No AJAY GOSWAMI 2025.07.10 17:25 I attest to the accuracy and integrity of this document