RAJ KUMAR v. RAJENDER

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372 of the Code of Criminal Procedure, 1973 (for short, "CrPC") against an order of acquittal passed in a case instituted upon a private complaint under Section 138 of the Negotiable Instruments Act, 1881 (for short, "the Act"), by treating the complainant in such a proceeding as a victim within the meaning ascribed to the term under Section 2(wa) of the CrPC. xxx xxx

xxx xxx

7.6 As already noted, the Act does not have a provision for filing of an appeal. The Act is a special enactment. In the circumstances, the CrPC, which is general in nature would have to be resorted to. The proviso to Section 372 of the CrPC considers the right

point of view of a victim, which expression not only includes an injured victim but even the legal representatives of a deceased victim. The inclusion of the proviso to Section 372 of the CrPC has to be read in the context of the definition of victim in clause (wa) of Section 2 of the CrPC. The expression 'victim' as defined under the said provision, includes not only the person who has suffered any loss or injury caused by the reason of the act or omission for which the acc

the said expression also includes his or her guardian or legal heir.

7.7 In the context of offences under the Act, particularly under Section 138 of the said Act, the complainant is clearly the aggrieved party who has suffered economic loss and injury due to the default in payment by the accused owing to the dishonour of the cheque which is deemed to be an offence under that provision. In such circumstances, it would be just, reasonable and in consonance with the spirit o

complainant under the Act also qualifies as a victim within the meaning of Section 2(wa) of the CrPC. Consequently, such a complainant ought to be extended the benefit of the proviso to Section 372, thereby enabling him to maintain an appeal against an order of acquittal in his own right without having to seek special leave under Section 378(4) of the CrPC.

7.8 In the case of an offence alleged against an accused under Section 138 of the Act, we are of the view that the compla owing to the alleged dishonour of a cheque. In the circumstances, the complainant can proceed as per the proviso to Section 372 of the CrPC and he may exercise such an option and he need not then elect to proceed under Section 378 of the CrPC.

7.9 In this context, we wish to state that the proviso to Section 372 does not make a distinction between an accused who is charged of an offence under the penal law or a person who is deemed to have committed

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xxx xxx xxx xxx of filing of an appeal from the used person has been charged but f the CrPC to hold that the inant is indeed the victim

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an offence under Section 138 of the Act. Symmetrical to a victim of an offence, a victim of a deemed offence under Section 138 of the Act also has the right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. When viewed from the perspective of an offence under any penal law or a deemed offence under Section 138 of the Act, the right to file an appeal is not circumscribed by any condition as such, so long as the appeal can be premis

372 which is the right to file an appeal by a victim, provided the circumstances which enable such a victim to file an appeal are met. The complainant under Section 138 is the victim who must also have the right to prefer an appeal under the said provision. Merely because the proceeding under Section 138 of the Act commences with the filing of a complaint under Section 200 of the CrPC by a complainant, he does not cease to be a victim inasmuch as it is only a victim cheque who can file a complaint. Thus, under Section 138 of the Act both the complainant as well as the victim are one and the same person.

7.10 Section 378 of the CrPC is a specific provision dealing with appeals. Sub-section (3) of Section 378 states that no appeal to the High Court under sub-section (1) or sub

with the leave of the Court, with which we are not concerned in the instant case. However, sub-section (4) of Section 378 is pertinent. an order of acquittal is passed in any case instituted upon a complaint and the High Court, on an application made to it by the complainant in that behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. The limitation period for seeking special leave to appeal is six months where the complainant is a public servant and sixty days in every other case, computed from the date of the order of acquittal. Sub that if, in any case, the application under sub special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub

section (2) of Section 378.

7.11 A reading of section 378 would clearly indicate that in case the complainant intends to file an appeal against the order of acquittal, his right is circumscribed by certain conditions precedent. When an appeal is to be preferred by a complainant, th

complainant is also the victim or only an informant. If the complainant is not a victim and the case is instituted upon a complaint, then sub

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ed in accordance with proviso to Section of a dishonour of

-section (2) shall be entertained except It states that if

-Section (6) states

-section (4) for grant of

-section (1) or under sub

e first question is, whether, the -section

an

-

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(4) requires that the complainant must seek special leave to appeal from an order of acquittal from the High Court. As noted under sub if the application under sub-section (4) for grant of special leave to appeal from the order of acquittal is refused, no appeal from that order of acquittal would lie, inter alia,

However, if the complainant is also a victim, he could proceed under the proviso to Section 372, in which case the rigour of sub Section 378, which mandates obtaining special leave to appeal, would not arise at all, as he can prefer an appeal as a victim and as a matter of right. Thus, if a victim who is a complainant, proceeds under Section 378, the necessity of seeking special leave to appeal would arise but if a victim whether he is a complainant or no

Section 372, then the mandate of seeking special leave to appeal would not arise.

xxx xxx

xxx xxx

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 ca

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 accuse who is said to have committed an offence under the said 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

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 wa

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-section (6), under sub-section (1) of Section 378. -section (4) of

t, files an appeal in terms of proviso to xxx xxx

xxx xxx

nnot be equated with the right provision, if

to Section 372 of the CrPC, as a s granted then

d

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4. It is irrefutably established by the au Hon'ble Supreme Court in

against an order of acquittal in a proceeding under Section 138 of the Negotiable Instruments

complainant, falls squarely within the ambit of the proviso to Section 372 of the Cr.P.C/ Section 413 BNSS. This legal position is predicated upon the undeniable fact that a

unquestionably satisfies the statutory definition of a under the Cr.P.C., thereby vesting in

to prefer an appeal under the aforesaid proviso to Section 372 Cr.P.C.

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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 have the right to prefer an appeal, inter alia, against an order of acquittal in terms of the proviso to Section 372 without seeking any special leave to appeal from the Hi on the grounds mentioned therein. A person who is a complainant under Section 200 of the CrPC who complains about the offence committed by a person who is charged as an accused under Section 138 of the Act, thus has the right to prefer an appeal as a victim under the proviso to Section 372 of the CrPC.

10. As already noted, the proviso to Section 372 of the CrPC was inserted in the statute book only with effect from 31.12.2009. The object and reason for such insertion must be realised and mus

court. In view of the aforesaid discussion, we hold that the victim of an offence has the right to prefer an appeal under the proviso to Section 372 of the CrPC, irrespective of whether he is a complainant or not. Even if the victim of an offence is a complainant, he can still proceed under the proviso to Section 372 and need not advert to sub

378 of the CrPC.

xxx xxx

xxx xxx

Celestium Financial

Act, 1881 (hereinafter 'NI Act'), preferred by the 'complainant'

such complainant

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gh Court only t be given its full effect to by a -section (4) of Section

xxx xxx

xxx xxx"

thoritative pronouncement of the (supra) that an appeal

in a Section 138 NI Act case 'victim' as contemplated

the unequivocal right

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Consequently, th Section 378 of the Cr.P.C., accompanied by an application for leave to appeal under Section 378(4) thereof, is, in light of the (supra) dictum, rendered fundamentally unsustainab in its current procedural posture.

5.

applicability of the precedent laid down in stands excluded, owing to the fact that the factual matrix pertai anterior to the pronouncement in

does not find any weight in the said contention as, t landscape is unequivocally settled on the distinct operational modalities of legislative enactm

canon of statutory construction that the force and effect of a legislative enactment are, as a general rule, deemed prospective in their application, unless a clear and unequivocal legislative inte

articulated within its provisions. This principle safeguards against the unsettling of vested rights and the imposition of unforeseen liabilities. Conversely, a definitive

its very nature, operat

otherwise.

judicial review: a judgment serves not as an act of legislative creation, but rather as an authoritative exposition

merely illuminates the true import and construction of a statute or provision, declaring its inherent meaning as it ought to have been understood and applied ab

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e instant appeal, having been erroneously preferred under An attempt has been made at the bar to contend that the

Celestium Financial

ents and judicial pronouncements. It is a well pronouncement emanating from the Apex es retrospectively, unless specifically directed This fundamental distinction inheres in the very essence of and clarification of the existing law. It initio, from the precise moment of its legislative g

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Celestium Financial

le and not maintainable

Celestium Financial (supra) ns to a period

(supra). This Court he jurisprudential

-established

nt for retroactivity is expressly court, by

enesis.

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Consequently, its retrospective application becomes a jurisprudential imperative.

5.1.

particularly one articulating a seminal principle of law, extends its pervasive influence t

various adjudicatory

understanding that what has been authoritatively enunciated is not a novel legal precept, but rather the intrinsic meaning of the

ex-ante, from the very inception of the concerned statute or provision. Indeed, that which has been authoritatively declared to constitute the terrae must, by jurisprudential necessity, be deemed to have always been the lex terrae

rationale that the

law but to maintain and expound the old one." The judicial function, therefore, is inherently one of discovery,

as a legislator

latent meaning of the law. Th

enduring truth, not the genesis of a novel legal reality. judgment passed by the Hon'ble Supreme Court titled as

Revenue Intelligence Vs. Raj Kumar Arora: 2025 INSC 498;

while reiterating Apex Court

Vs. Saurashtra Kutch St

observed thus:

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The logical corollary of this doctrine is that a judicial decision, o all matters, irrespective of their stage of pendency across fora. This is predicated upon the profound

. This profound conclusion is further buttressed by the venerable raison d'être of the judiciary is not to "pronounce a new proprio motu, but as an expositor, meticulously unearthing the e court's declaration is thus a

At this juncture it would be germane to refer herein to a the ratio decidendi of an earlier pronouncement in a case titled as Assistant Commissioner, Income Tax, Rajkot ock Exchange Limited

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law which has subsisted not of creation; the judge acts not recognition of an

Directorate of

wherein of the

: 2008 (14) SCC 171, it was lex

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6.

the consideration of an

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"94. xxxxxxxxxxxxxxxxxxxxxxxxxxxxx. According to this theory the function of the court to pronounce a "new rule" but to maintain and expound the "old one". Therefore, if the subsequent decision alters or overrules the earlier one, it cannot be said to have made a new law. The correct principle of law is just discovered and applied retrospectively. In other words, if in a given situation an earlier decision of the court operated for quite some time and it is overruled by a subsequent decision, the decision rendered subsequently would have retrospective eff would serve to clarify the legal position which was not clearly understood earlier. Any transaction would then be covered by the law declared by the overruling decision. The overruling is generally retrospective with the only caveat being that matters that are res judicatae or accounts that have been settled in the meantime would not be disturbed. The relevant observations made by this Court are reproduced hereinbelow:

"35. In our judgment, it is also well settled that a judicial decision acts retrospectively. According to Blackstonian theory, it is not the function of the court to pronounce a "new rule" but to maintain and expound the "old one". In other words, Judges do not make law, they only discover or find the correct law. The law has always been the same. If a subsequent decision alters the earlier one, it (the later decision) does not make new law. It only discovers the correct principle of law which has to be applied retrospectively. To put it differently, even where an earlier decision of t operated for quite some time, the decision rendered later on would have retrospective effect clarifying the legal position which was earlier not correctly understood.

36. Salmond in his well-known work states:

"[T]he theory of case law is that a merely declares it; and the overruling of a previous decision is a declaration that the supposed rule never was law. Hence any intermediate transactions made on the strength of the supposed rule are governed by the law establis

decision. The overruling is retrospective, except as regards matters that are res judicatae or accounts that have been settled in the meantime."

It is imperative to acknowledge that the parameters governing appeal under the proviso to Section 372 Cr.P.C./

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, it is not ect and

he court judge does not make law; he hed in the overruling

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Section 413 BNSS and those applicable to an appeal under Section 378(4) Cr.P.C./419(4) BNSS are distinctly dissimilar, with the former possessing a markedly wider amplitude in scope as compared to the latte Notwithstanding the procedural non

this Court is of the considered view that a summary dismissal solely on a procedural technicality would constitute an unwarranted wastage of precious judicial time and resources a

proceedings. Embracing the cardinal jurisprudential principle that the cause of substantive justice must unequivocally prevail over procedural technicalities, this Court is firmly convinced that the ends of justic be more adequately served by adopting a pragmatic approach. Rather than dismissing the appeal in limine on a mere procedural infirmity, this Court deems it appropriate to relegate the matter to the concerned Sessions Court, with a clear direction t

applications, be treated and adjudicated as an appeal validly preferred under the proviso to Section 372 Cr.P.C. This approach is consistent with the fundamental objective of any judicial system, which is to substantive justice, and not to become entangled in the labyrinthine complexities of procedural intricacies that may, on occasion, obscure the chariot of justice rather than facilitate its motion.

7.

appeal, along with accomp (i)

remitted to the learned Sessions Judge, Mahindergarh at Narnaul with a direction to treat the same as having been filed under Section 372 of Cr.P.C.,

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-maintainability of the instant appeal, lready expended in the initiation of these hat the present filing, along with all appended Ergo; in view of the prevenient ra anying application(s),

The present appeal, along with

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e would deliver real and tiocination; the present is disposed of as hereunder accompanying application(s) r.

:

, is

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1973/Section 413 of BNSS, 2023. The said learned Sessions Judge may entrust the appeal to himself or

jurisdiction for its disposal, as per law.

(ii)

of the appeal

is left open for consid

shall indubitably

observation made hereinabove.

(iii).

records of the present

Sessions Judge.

July 07, 202

Ajay

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assign it to another Court of competent Needless to clarify that this Court has not delved into the merits as also along with accompanying application(s) eration of the concerned learned Sessions Court, which adjudicate the same without getting influenced by any The Registry is directed to send, expeditiously, the complete appeal (including the paper

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Whether speaking/reasoned:

Whether reportable:

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; and the same -book) to the said learned

(SUMEET GOEL)

JUDGE

Yes/No Yes/No

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