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High Court of Punjab and Haryana · body

2025 DAILYLAW 82802 (PNJ)

MONIKA PERRIWAL v. SURINDER SINGH

CRM-A/2674/2019 · 2025-09-11

Vinod S Bhardwaj

body2025

Judgment text

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IN THE HIGH COURT OF PUNJAB & HARYANA 233 Monika Periwal Surinder Singh CORAM : HON'BLE MR. JUSTICE Present :- Ms. for the applicant. VINOD S. BHARDWAJ The present application has been of the Code of Criminal Procedure, 1973 (hereinafter ‘CR.P.C.’) seeking grant of leave to appeal passed by the learned from complaint dated 17.10.2016 Instruments Act, 1881. 2. It is noticed that the instant application pertains to the year 2019, however, no one has entered appearan hence, it is deemed expedien Bharti, Advocate, who is present in the Court, is appointed as the Legal Aid Counsel to represent the case on behalf of She has gone through the case file and submits that the has been filed against the judgment of acquittal dated the Judicial Magistrate filed under Section IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRM-A-2674 Date of decision: Monika Periwal VERSUS HON'BLE MR. JUSTICE VINOD S. BHARDWAJ . Sadhvi Bharti as Legal Aid Counsel, for the applicant. ***** VINOD S. BHARDWAJ, J. (Oral) The present application has been preferred under Section 378(4) of the Code of Criminal Procedure, 1973 (hereinafter ‘CR.P.C.’) seeking grant of leave to appeal against the judgment of acquittal passed by the learned Judicial Magistrate First Class complaint dated 17.10.2016 filed under Section 138 of Negotiable Instruments Act, 1881. It is noticed that the instant application pertains to the year , however, no one has entered appearance on behalf of the applicant hence, it is deemed expedient to nominate a Legal Aid Counsel. , Advocate, who is present in the Court, is appointed as the Legal Aid Counsel to represent the case on behalf of applicant e has gone through the case file and submits that the has been filed against the judgment of acquittal dated Magistrate 1st Class, Abohar, in Section 138 of Negotiable IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 2674-2019 (O&M) Date of decision: 11.09.2025 ...Applicant ...Respondent VINOD S. BHARDWAJ as Legal Aid Counsel, preferred under Section 378(4) of the Code of Criminal Procedure, 1973 (hereinafter ‘CR.P.C.’) seeking judgment of acquittal dated 15.07.2019 Judicial Magistrate First Class, Abohar stemming out filed under Section 138 of Negotiable It is noticed that the instant application pertains to the year ce on behalf of the applicant, to nominate a Legal Aid Counsel. Ms. Sadhvi , Advocate, who is present in the Court, is appointed as the Legal Aid applicant to arrive at a decision. e has gone through the case file and submits that the present application has been filed against the judgment of acquittal dated 15.07.2019 passed by in CIS No.NACT-1291/2016 Negotiable Instruments Act, 1881. SUMIT SINGH GUSAIN 2025.09.12 16:14 I attest to the accuracy and integrity of this document 233 CRM She fairly submits that in view of the judgment passed by the Hon’ble Supreme Court in 2025(3) RCR (Criminal) 208 Court of Sessions. 3. The complaint (supra) was cheque of Rs.13,06,170 record, the learned trial Court acquitted the respondent(s) vide judgment dated 15.07.2019 4. The Hon’ble Supreme Court in Gnanasekaran Etc., 2025(3) RCR (Criminal) 208 discussion and comparative interpretation of Sections 372 and 378(4) of Cr.P.C., concluded that the victim has a right to file an appeal under Section 372 of Cr.P.C. before the Cour Nagarathna, the following was held: “7.12 see and can be elaborated as follows: Firstly prefer an 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 whose cheque has been dishonoured. Secondly CRM-A-2674-2019 (O&M) e fairly submits that in view of the judgment passed by the Hon’ble Supreme Court in M/s. Celestium Financial vs. A. Gnanasekaran Etc., 2025(3) RCR (Criminal) 208, the applicant would have a reme Court of Sessions. The complaint (supra) was filed on th 13,06,170/-. After assessing all the material available on the record, the learned trial Court acquitted the respondent(s) vide judgment 15.07.2019. The Hon’ble Supreme Court in M/s. Celestium Financia Gnanasekaran Etc., 2025(3) RCR (Criminal) 208 discussion and comparative interpretation of Sections 372 and 378(4) of Cr.P.C., concluded that the victim has a right to file an appeal under Section 372 of Cr.P.C. before the Court of Sessions. Speaking through Justice B.V. Nagarathna, the following was held: 7.12 The reasons for the above distinction are not far to see and can be elaborated as follows: Firstly, the victim of a crime must have an absolute right to prefer an appeal which cannot be circumscribed by any condition precedent. In the instant case, a victim under Section 138 of the Act, i.e., a payee or the holder of a cheque is a person who has suffered the impact of the offence committed by a person who is charged of the offence, namely, the accused, whose cheque has been dishonoured. Secondly, the right of a victim of a crime must be placed on par 2 e fairly submits that in view of the judgment passed by the Hon’ble M/s. Celestium Financial vs. A. Gnanasekaran Etc., the applicant would have a remedy before the filed on the ground of dishonour of . After assessing all the material available on the record, the learned trial Court acquitted the respondent(s) vide judgment 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 t of Sessions. Speaking through Justice B.V. 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 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 of the offence, namely, the accused, whose cheque has been dishonoured. , the right of a victim of a crime must be placed on par SUMIT SINGH GUSAIN 2025.09.12 16:14 I attest to the accuracy and integrity of this document 233 CRM with the right of an accused who has suffered a conviction, who, as a matter of right can prefer an appeal under Secti 374 of the Cr.P.C. 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 mus Thirdly insert the proviso to sub condition precedent to be fulfilled by the victim of an offence, which expression also incl 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 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 Cr.P.C. would be contrary to what has been intended by the Parliament by insertion of the proviso to Section 372 of the Cr.P.C. Fourthly circumscribe the victim’s right to prefer an appeal just as it has CRM-A-2674-2019 (O&M) with the right of an accused who has suffered a conviction, who, as a matter of right can prefer an appeal under Secti 374 of the Cr.P.C. 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 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 Cr.P.C. would be contrary to what has been intended by the Parliament by insertion of the proviso to Section 372 of the Cr.P.C. Fourthly, the Parliament has not amended Section 378 to circumscribe the victim’s right to prefer an appeal just as it has 3 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 Cr.P.C. 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 t have a right to prefer an appeal. , it is for this reason that the Parliament thought it fit to section 372 without mandating any condition precedent to be fulfilled by the victim of an offence, udes 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 Cr.P.C. would be contrary to what has been intended by the Parliament by insertion of the proviso to Section 372 of the Cr.P.C. , the Parliament has not amended Section 378 to circumscribe the victim’s right to prefer an appeal just as it has SUMIT SINGH GUSAIN 2025.09.12 16:14 I attest to the accuracy and integrity of this document 233 CRM 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 t an offence to prefer an appeal on the grounds mentioned therein as compared to a complainant. Fifthly under Section 138 of the Act is conspicuous by its ab is because the complaint filed under that provision is in the nature of a private complaint as per Section and Section 143 of the Act by an express intention incorporates the provisions of the Cr.P.C. in the matter of trial o 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 Cr.P.C.” 5. Therefore, in view of the judgment rendered by the Apex Court in Celestium Financial (supra) appeal is remanded to treat the same as an appeal filed entrust the same to appropriate Court for its disposal on merits. 6. The Registry is directed to send the complete paper the record of the case to the learned Sessions Judge, 7. Disposed of accordi CRM-A-2674-2019 (O&M) 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 ab is because the complaint filed under that provision is in the nature of a private complaint as per Section and Section 143 of the Act by an express intention incorporates the provisions of the Cr.P.C. in the matter of trial o 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 Cr.P.C.” Therefore, in view of the judgment rendered by the Apex Court Celestium Financial (supra), the present application seeking leave to remanded to the learned Sessions Judge, to treat the same as an appeal filed under Section 372 of the Cr.P.C. and entrust the same to appropriate Court for its disposal on merits. The Registry is directed to send the complete paper the record of the case to the learned Sessions Judge, Disposed of accordingly. Pending miscellaneous applications, if 4 with regard to a complainant or the State filing an appeal. On the other hand, the Parliament has inserted the proviso to o envisage a superior right for the victim of an offence to prefer an appeal on the grounds mentioned therein as compared to a complainant. , 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 Cr.P.C. and Section 143 of the Act by an express intention incorporates the provisions of the Cr.P.C. 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 Therefore, in view of the judgment rendered by the Apex Court , the present application seeking leave to to the learned Sessions Judge, Fazilka with a direction under Section 372 of the Cr.P.C. and entrust the same to appropriate Court for its disposal on merits. The Registry is directed to send the complete paper-book and the record of the case to the learned Sessions Judge, Fazilka forthwith. ngly. Pending miscellaneous applications, if SUMIT SINGH GUSAIN 2025.09.12 16:14 I attest to the accuracy and integrity of this document 233 CRM any, also stand disposed of. 8. A copy of this order be sent to the High Court Legal Service Committee for information and necessary action. 11.09.2025 Sumit Gusain Whether speaking/reasoned Whether reportable CRM-A-2674-2019 (O&M) any, also stand disposed of. A copy of this order be sent to the High Court Legal Service Committee for information and necessary action. (VINOD S. BHARDWAJ) Whether speaking/reasoned : Yes/No Whether reportable : Yes/No 5 A copy of this order be sent to the High Court Legal Service Committee for information and necessary action. (VINOD S. BHARDWAJ) JUDGE SUMIT SINGH GUSAIN 2025.09.12 16:14 I attest to the accuracy and integrity of this document