IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CRM-A-1716-2023(O&M)

Date of decision: 25.08.2025 THE MANSA PRIMARY COOPERATIVE AGRICULTURE DEVELOPMENT BANK LIMITED ….Applicant Versus RAJESH KUMAR ....Respondent CORAM:- HON'BLE MS. JUSTICE RUPINDERJIT CHAHAL Present:- Mr. Mukul Aggarwal, Advocate for the applicant.

..…

RUPINDERJIT CHAHAL, J. (ORAL)

CRM-51605-2023 Instant application has been preferred seeking condonation of delay of 118 days in filing the appeal.

2. Keeping in view the averments made in the application and in the interest of justice, application is allowed and delay of 118 days in filing the present appeal is condoned subject to all just exceptions.

3. Application is disposed of accordingly.

Main case

1. The present application has been filed under Section 378(4) Cr.P.C. seeking to challenge the order dated 14.03.2023 passed by the Court of Additional Chief Judicial Magistrate, Mansa, whereby, the complaint under Section 138 of the Negotiable Instruments Act, filed by the applicant-

petitioner was dismissed and the accused/respondent was acquitted.

2. The limited question arising for consideration in the present proceedings is whether an appeal against an order of acquittal passed in a complaint case under Section 138 of NI Act can be entertained under the proviso to Section 372 of the Cr.P.C. (now Section 413 of BNSS) at the instance of the complainant?

3. The issue is no longer res integra. In ‘M/s Celestium Financial Vs. A. Gnanasekaran Etc. 2025 INSC 804: 2025(3) RCR (Criminal) 208’, the Hon’ble Supreme Court authoritatively held that a complainant in a prosecution under Section 138 of the NI Act, qualifies as a ‘victim’ under Section 2(wa) of the Cr.P.C., being the person who suffers financial loss due to the dishonour of a cheque. Consequently, such a complainant is entitled to pursue an appeal against acquittal under the proviso to Section 372 of the Cr.P.C., without the requirement of seeking special leave under Section

378(4) of the Cr.P.C. The relevant paragraph is reproduced as under:-

“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 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 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 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 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 ha