CRL.L.P./565/2022 of DALIP RAI Vs THE STATE NCT OF DELHI & ANR.

IN THE HIGH COURT OF DELHI AT NEW DELHI+CRL.L.P. 565/2022 & CRL.M.A. 25370/2022DALIP RAI.....PetitionerDALIP RAI.....Petitioner

Through:Mr. Alamgir, Adv.

versus

THE STATE NCT OF DELHI & ANR......RespondentThrough:Ms. Shubhi Gupta, APP for StateThrough:Ms. Shubhi Gupta, APP for State

CORAM:

HON'BLE MR. JUSTICE MANOJ KUMAR OHRIO R R

02.09.2025

1.The present petition has been filed under Section 378(4) Cr.P.C. bythe petitioner/complainant seeking leave to appeal against the judgementdated 22.08.2022 passed by learned JMFC, NI Act, KKD Courts in the casebearing CC No.51722/16 (Old CC No.154/12) titled as ‘DALIP RAI v.KIRAN NAIN & ANR. vide which the respondent No.2 was acquitted of theoffense under Section 138 NI Act.

2.The attention of this Court is drawn to the recent decision of theSupreme Court in Celestium Financial vs A. Gnanasekaran etc, reported as2025 SCC OnLine SC 1320 wherein, it has been held that the complainantunder Section 138 NI Act, who suffers financial loss and injury on accountof the dishonour of cheque, would qualify as victim within the meaning ofSection 2 (wa) Cr.P.C.

It was further held that such complainant could maintain an appeal under

proviso to Section 372 CrPC in his own right, without complying with therigours of Section 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 asa victim within the meaning of Section 2(wa) of the CrPC.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 withouthaving to 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 ofan offence under the penal law or person who is deemed to havecommitted an offence under Section 138 of the Act. Symmetrical toa victim of an offence, victim of deemed offenceunder Section 138of the Act also has the right to prefer an appeal against any orderpassed by the court acquitting the accused or convicting for lesseroffence or imposing an inadequate compensation. When viewed fromthe perspective of an offence under any penal law or deemed offenceunder 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, hedoes not cease to be victim inasmuch as it is only victim of adishonour of cheque who can file complaint. Thus, under Section138 of the Act both the complainant as well as the victim are oneand the same person.”

3.Normally, complainant who seeks to challenge judgement ofacquittal has to meet the rigours of Section 378(4) Cr.P.C. The aggrievedcomplainant has to apply before the High Court for special leave to appeal.If the High Court grants it, the complainant can present such appeal beforethe High Court.

4.However, if the complainant under the NI Act is also held to be a‘victim’, then all the rights available to the victim by the Code would also beextended to such complainant, including separate right to appeal providedunder the proviso to Section 372 Cr.P.C. The proviso reads as follows:-

“Provided that the victim shall have right to prefer anappeal against any order passed by the Court acquitting theaccused or convicting for lesser offence or imposinginadequate compensation, and such appeal shall lie to theCourt to which an appeal ordinarily lies against the order ofconviction 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) conviction fora lesser offence or c) imposing inadequate compensation. It also states thatsuch appeal shall lie to the court to which an appeal ordinarily lies againstthe order of conviction of such court. Section 372 is self-contained andindependent provision which is not to be read conjointly with any otherprovision, including Section 378 Cr.P.C.

5.Effect of the proviso of Section 372 CrPC is twofold. Firstly, itprovides the victim an individual right to appeal against an order of acquittalwhich is distinct from the right provided to the complainant under Section

378(4) Cr.P.C as in this case, no special leave to appeal needs to be obtainedfrom the High Court. Secondly, it provides an additional forum of challengeas in case of an appeal preferred by the victim under Section 372 CrPC, thesame lies before the Court to which an appeal ordinarily lies against theorder of conviction of such Court. Section 143 of the NI Act states that alloffences under Chapter XVII of the Act, including an offence under Section138 shall be tried by Judicial Magistrate of First Class or by MetropolitanMagistrate. An appeal against conviction, and thus an appeal preferred by thevictim, would lie before the Sessions Court.

6.In light of the Supreme Court's recent clarification of the legalposition, it is now evident that the petitioner, 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.

7.Co-ordinate Benches of this Court in Yogesh Kataria v. State (Govt ofNCT of Delhi) & Anr[1], Abdul Malik v State (Govt of NCT of Delhi) & Anr[2],Promila Lekhi v. Safe Hands Chits Pvt. Ltd. & Anr[3], Shri Ujjawal Arora v.State and Ors[4],taking note of the decision in Celestium Financial(Supra),have allowed the withdrawal of leave petitions filed before this Court with

1 decided on 16.07.2025 in CRL.LP. 367/2025

2 decided on 22.07.2025 in CRL.LP. 378/2025

3 decided on 14.07.2025 in CRL.LP. 360/2025

4 decided on 15.07.2025 in CRL.LP./2025

liberty to the petitioners/complainants to approach the concerned SessionsCourt.

8.Similarly, the High Court of Bombay in Gunjan w/o Alok Khandelwalv.ParvaizHussain[5],DnyaneshwarDinkarBadvev.TheStateofMaharashtra & Anr[6],the High Court of Karnataka in Sidagondappa vs ShafiAhammad[7], Sri T Lenkappa vs Sri Sanjay[8],High Court of Chattisgarh inNemnath Yogi vs. Yashwant Chandravanshi[9], Neelam Sahu v. NaradNagwanshi[10], and Smt. Kirti Kurian v. Ajay Singh; the High Court ofMadhya Pradesh in Urmila Madrah v. Samarpan Jain[11]and the High Courtof Gujarat in Baroda Cricket Association v. State of Gujarat & Anr[12],Gauhati High Court in Bhargab Kaushik v. Dilip Kumar Bhagabati[13],Allahabad High Court in Indian Farm Forestry Development CooperativeLtd v. Mangala Trading Company[14]and Himachal Pradesh High Court inRoshan Chauhan vs . Mohan Lal[15]have also relied on Celestium Financial(Supra) to relegate the parties to contest their casebefore the SessionsCourt.

9.In view of the above, learned counsel for the appellant, on

5 decided on 21.07.2025 in Criminal Application (APPA) No. 150/2023 in Criminal Appeal ST. No.10465/202210465/2022

6 decided on 24.07.2025 in Criminal Writ Petition No. 793/2025

7 decided on 31.07.2025 in CRL.A No. 200021 of 2018

8 decided on 23.07.2025 in CRL.A No. 146 OF 2015

9 decided on 07.08.2025 in CRMP No. 579 of 2021

10 decided on 16.07.2025 in ACQA No. 340 of 2018

11 decided on 21.07.2025 in CRL.A. No. 11872 of 2022

12 decided on 17.06.2025 in R/CR.MA/3473/2025

13 decided on 04.08.2025 in Crl.L.P./34/2025

14 decided on 28.07.2025 in APPLICATION U/S 378 No. - 56 of 2025

15 decided on 21.07.2025 in Cr. MP(M) No. 1629 of 2025

instructions, seeks leave to withdraw this petition, with liberty to approachthe concerned Sessions Court.

10.Considering the above noted legal position, the present petition isdismissed as withdrawn with the direction that the accompanying appeal betransferred to the concerned Appellate Court of Sessions and be consideredas an appeal under the proviso to Section 413 of BNSS (formerly Section372 of CrPC) and numbered accordingly.

11.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.

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

13.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.

14.The earlier date fixed, if any, before this Court stands cancelled.15.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.

16.A copy of the order be sent to the concerned Principal District and

Sessions Judge for necessary information and compliance.

SEPTEMBER 2, 2025na

MANOJ KUMAR OHRI, J

This is digitally signed order.The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above.The Order is downloaded from the DHC Server on 16/09/2025 at 12:28:21