CRL.A./550/2011 of RANBIR SINGH Vs NEERAJ SHARMA

*IN THE HIGH COURT OF DELHI AT NEW DELHI+CRL.A. 550/2011RANBIR SINGH.....Appellant

.....AppellantThrough:Mr. Sanjay Gupta, Advocate

versus

NEERAJ SHARMA

.....Respondent

Through:Mr. Anil Kumar Verma, Advocate

CORAM:HON'BLE MR. JUSTICE MANOJ KUMAR OHRIO R R02.09.2025

1.The present appeal has been filed under Section 378(4) Cr.P.C. by theappellant/complainant against the judgement dated 28.10.2009 passed byJMFC, NI Act, Dwarka Court in the case bearing CC No.2696/01 titled as‘RANBIR SINGH v. NEERAJ SHARMA’ vide which the respondent wasacquitted of the offense under Section 138 NI Act. The appellant hadapproached this Court vide CRL.L.P. No. 10/2010 seeking leave to appealand the same was granted by this Court vide order dated 29.04.2011,following which the appeals were duly admitted.

2.The appellant is the complainant under Section 138 of the NI Act whois aggrieved by the dishonour of the cheques statedly issued by therespondent. The trial which was initiated on the basis of his complaint hasbeen dismissed for non-prosecution, resulting in finding of acquittal forrespondent vide the impugned judgement. Naturally, the appellant is

aggrieved by the said decision and wants to challenge the same.

3.During the course of proceedings, the attention of this Court is drawnto the recent decision of the Supreme Court in Celestium Financial vs A.Gnanasekaran etc, reported as 2025 SCC OnLine SC 1320 wherein, it hasbeen held that the complainant under Section 138 NI Act, who suffersfinancial loss and injury on account of the dishonour of cheque, wouldqualify as victim within the meaning of Section 2 (wa) Cr.P.C. It wasfurther held that such complainant could maintain an appeal under provisoto Section 372 CrPC in his own right, without complying with the rigours ofSection 378(4) CrPC. The relevant portion is extracted hereunder:-

“7.7 In the context of offences under the Act, particularly underSection 138 of the said Act, the complainant is clearly the aggrievedparty who has suffered economic loss and injury due to the default inpayment by the accused owing to the dishonour of the cheque which isdeemed to be an offence under that provision. In such circumstances, itwould be just, reasonable and in consonance with the spirit of theCrPC to hold that the complainant under the Act also qualifies as avictimwithinthemeaningofSection2(wa)oftheCrPC.Consequently, such complainant ought to be extended the benefitof the proviso to Section 372, thereby enabling him to maintain anappeal against an order of acquittal in his own right without havingto seek special leave under Section 378(4) of the CrPC.

xxx

7.9 In this context, we wish to state that the proviso to Section 372does not make distinction between an accused who is charged of anoffence under the penal law or person who is deemed to havecommitted an offence under Section 138 of the Act. Symmetrical to avictim of an offence, victim of deemed offenceunder Section 138 ofthe Act also has the right to prefer an appeal against any order passedby the court acquitting the accused or convicting for lesser offence orimposing an inadequate compensation.When viewed from theperspective of an offence under any penal law or deemed offence

under Section 138 of the Act, the right to file an appeal is notcircumscribed by any condition as such, so long as the appeal can bepremised in accordance with proviso to Section 372 which is the rightto file an appeal by victim, provided the circumstances which enablesuch victim to file an appeal are met. The complainant underSection 138 is the victim who must also have the right to prefer anappeal under the said provision. Merely because the proceedingunder Section 138 of the Act commences with the filing of acomplaint under Section 200 of the CrPC by complainant, he doesnot cease to be victim inasmuch as it is only victim of dishonourof cheque who can file complaint. Thus, under Section 138 of theAct both the complainant as well as the victim are one and the sameperson.”

4.To discuss the implications of the aforesaid decision, it would beprudent to first analyse the statutory matrix. Chapter XXIX of the Cr.P.C.contains the provisions governing appeals. Section 372 lays down, inunequivocal terms, that appeals can only be filed in accordance with theCrPC or any other law in force. Section 374 deals with appeals fromconviction, which we are not concerned with presently. Section 378 laysdown the procedure to be followed in cases of appeals from acquittals. Sub-section (4) of the said provision in particular, deals with appeals fromacquittals in cases which were instituted on complaints, such as those underSection 138 of the NI Act. In such case, the aggrieved complainant has toapply before the High Court for special leave to appeal. If the High Courtgrants it, the complainant can present such appeal before the High Court.Section 378 (5) provides for the period of limitation for filing suchapplication for leave to appeal, and Section 378 (6) states that if the HighCourt refuses the special leave to appeal, no appeal would lie from that order

of acquittal under Section 378(1) or (2).

5.A careful reading of the above provisions would show that the right ofthe complainant to prefer an appeal against the order of acquittal iscircumscribed by certain conditions precedent. However, if the complainantunder the NI Act is also held to be ‘victim’, then all the rights available tothe victim by the Code would also be extended to such complainant,including separate right to appeal. Before discussing the possibleconsequences of the above finding, it would be pertinent to understand howthe Code defines and provides for the victim.

6.Section 2 (wa) of Cr.P.C. defines victim in the following fashion:-

“victim” means person who has suffered any loss or injury caused byreason of the act oromission for which the accused person has beencharged and the expression “victim” includes his orher guardian orlegal heir;reason of the act oromission for which the accused person has beencharged and the expression “victim” includes his orher guardian orlegal heir;

This definition was added to the Code with effect from 31.12.2009.This was accompanied by slew of victim centric changes to the Code, suchas the victim compensation scheme in Section 357A and 357B, free medicalaid to the victims of certain offences under Section 357C, etc. One of themost important rights which has been provided to the victims is the right toappeal, which has been inserted as proviso to Section 372 CrPC. It reads asunder:-

“Provided that the victim shall have right to prefer an appeal againstany order passed by the Court acquitting the accused or convicting fora lesser offence or imposing inadequate compensation, and suchappeal shall lie to the Court to which an appeal ordinarily lies againstthe order of conviction of such Court.”

careful reading of the above proviso would show that the victim canappeal from three types of orders : a) an order of acquittal, b) convictionfor lesser offence or c) imposing inadequate compensation. It also statesthat such appeal shall lie to the court to which an appeal ordinarily liesagainst the order of conviction of such court. Section 372 is self-containedand independent provision which is not to be read conjointly with any otherprovision, including Section 378 Cr.P.C. It applies to acquittals from bothTrial Court and Appellate Court and the appeal would lie in the firsthierarchical superior court. (Ref: Asian Paints limited v. Ram Babu &Anr1,Mahabir v. State of Haryana[2])

7.Introduction of this proviso does, in effect, two things. One, itprovides the victim an individual right to appeal against an order of acquittalwhich is distinct from the right provided to the complainant under Section378(4) Cr.P.C as in this case, no special leave to appeal needs to be obtainedfrom the High Court. Secondly, there is difference in the forum to whichappeals can be preferred. While under Section 378(4) Cr.P.C, after grantingspecial leave to appeal, the High Court would hear the appeal. However, incase of an appeal preferred by the victim under Section 372 CrPC, the samelies before the Court to which an appeal ordinarily lies against the order ofconviction of such Court. Section 143 of the NI Act states that all offencesunder Chapter XVII of the Act, including an offence under Section 138 shallbe tried by Judicial Magistrate of First Class or by Metropolitan

1SLP (Crl.) No.(s) 9888/2024, decided on 14.07.202522025 SCC OnLine SC 18422025 SCC OnLine SC 184

Magistrate. An appeal against conviction, and thus an appeal preferred by thevictim, would lie before the Sessions Court.

8.There are number of reasons for this difference in the mechanism fora victim and complainant. Rights of victim are placed on par with therights of the accused who suffers conviction and as matter of right canprefer an appeal under Section 374 of the CrPC, without being subject to anyconditions. The victim’s right to prefer an appeal is also absolute, as isreflected from the language of the proviso to Section 372 CrPC. It is alsoworth noting that the parliament has not amended Section 378 CrPC tocircumscribe the victim’s appeal with the similar limitations as that of thecomplainant.

9.In light of the Supreme Court's recent clarification of the legalposition, it is now evident that the appellant, being the complainant underSection 138 of NI Act, is also entitled to file an appeal against the impugnedjudgment of acquittal before the Sessions Court, since he is considered to bea victim. If this Court were to proceed to hear and decide the appeal at thisstage, it could deprive the parties of an available forum i.e., this Court, forfurther challenge.

10.A Co-ordinate Bench of this Court in Vijender Singh v. Mahender Pal@ Bindu[3]while placing reliance on Celestium Financial(Supra), hadrelegated the parties to the Sessions Court. The differences in the remediesavailable under Section 378(4) and proviso to Section 372 CrPC were alsodiscussed. The relevant portion is extracted hereunder:-

3decided on 23.07.2025 in CRL.L.P. 215/2021

“21. It has been argued on behalf of the Petitioner that in CelestiumFinancial, (supra) the Apex Court has given an option to theComplainant to Appeal either under Section 372 Cr.P.C. or avail theremedy under Section 378(4) Cr.P.C.

22. This argument is totally without any basis for the anomaly inadopting this approach is evident from the fact that in case, the Leaveto Appeal is denied under Section 378(4) Cr.P.C, the Complainantloses chance to agitate his Appeal on merits as matter of right inthe first Appeal.

23. Similar facts were involved in Celestium Financial, (supra)whereby the Apex Court while setting-aside the Order dismissing theLeave to Appeal, had directed that the First Appeal as matter of rightbe filed under proviso to Section 372 Cr.P.C.

24. The second aspect of the argument is that while an Appeal underproviso to Section 372 Cr.P.C is matter of right, but under Section378(4) Cr.P.C., Leave has to be sought. The two remedies cannot beequated as an alternate to each other.

25. The third aspect is that by conferring right of First Appeal as amatter of right, he would have an option to further challenge it byway of Revision or as per law. If Section 378(4) Cr.P.C. is invoked bythe Complainant, then he loses his right of First Appeal. Thecontention so raised on behalf of the Complainant is, therefore,without any merit.

26. It is thus, held that Complainant in Complaint under Section138 of N.I. Act, indeed is victim, who has substantial right toAppeal under proviso to Section 372 Cr.P.C. to the Court, which isimmediately superior in hierarchy. This implies that the right toAppeal against the Judgment of acquittal by the learned MetropolitanMagistrate, in this Case under Section 138 of N.I. Act, lies before theCourt of Sessions.”

11.Other benches of this Court in Krishan Lal v. Wasim Khan4 and Girish5Rehani v. M/s Keltech Infrastructure Ltd. &Ors. in cases where the leave toappeal under Section 378 (4) Cr.P.C. had already been granted, keeping inview the import of the decision in Celestium Financial(Supra), transferred

4Decided on 28.07.2025 in CRL.A. 783/2018

5decided on 11.08.2025 in Crl.A 337/2025

the appeal to the Court of Sessions.

12.Similar view has been taken by the High Court of Andhra Pradesh inCharbel India v. State of Andhra Pradesh[6], High Court of Madhya Pradesh inManorama Kankane v. Narendra Kumar Shukla[7],Late Kisan Sewa Kendra v.Pritam Singh[8], Smt. UrmitMadrah v. Samarpan Jain[9], High Court ofChattisgarh in Neelam Sahu v. NaradNagwanshi10 and Smt. Kirti Kurian v.AjaySingh[11];andKarnatakaHighCourtinSidagondappav.ShafiAhammad[12]and Sri TH Lenkappa v. Sri Sanjay &Anr.[13]13.AnoverallassessmentoftheCatenaofdecisionsdiscussedhereinabove reveals that the Celestium Financial(Supra) has been relied uponby this Court as well other High Courts across the country, to relegate theparties back to the Sessions Court with directions to the Court to considerthese appeals filed under Section 378(4) Cr.P.C as if they had been filedunder Section 372 Cr.P.C. This Court feels no reason to take contrary viewin the present case.14.Learned counsel for the appellant submits that he has no objection ifthe matter is remanded back to the Sessions Court.

15.Considering the above noted legal position, it is deemed fit to directthat the present appeal be transferred to the concerned Appellate Court of

62025SCC OnLine AP 2815

72025SCC OnLine MP 4779

82025SCC OnLine MP 4818

9decided on 21.07.2025 in Criminal Appeal No. 11872 of 2022

10decided on 16.07.2025 in ACQA No. 340 of 2018

11decided on 16.07.2025 in ACQA No. 198 of 2019

12decided on 31.07.2025 in CRL.A. No. 20021/2018

13decided on 23.07.2025 in CRL.A. No. 146/2015

Sessions and be considered as an appeal under the proviso to Section 413 ofBNSS(formerly Section 372 of CrPC) and numbered accordingly.

16.The Registry is directed to transfer entire record of the case includingthe requisitioned copies of TCR, to the concerned Principal District &Sessions Judge, who may assign it to the concerned Appellate Court/ learnedASJ having the jurisdiction and for which purpose, it would be listed beforethe concerned Principal District & Sessions Judge, at the first instance, on27.09.2025 for directions.

17.In case there are applications pending for Condonation of Delay, thesame be also transferred to be considered by the learned ASJ in accordancewith law.

18.Considering that the matter has been pending for considerable time,learned Appellate Court is requested to make an endeavour to dispose thematter as expeditiously as possible.

19.It is made clear that this Court has not made any observations as to themerits of the case and all rights and contentions of the parties are left open tobe agitated before the Court concerned.

20.A copy of the order be sent to the concerned Principal District andSessions Judge for necessary information and compliance

SEPTEMBER 2, 2025

MANOJ KUMAR OHRI, J