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Delhi High Court – Orders
Kuldeep Singh vs Amarjeet Singh on 26 August, 2025
Author: Manoj Kumar Ohri
Bench: Manoj Kumar Ohri
$~35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 1149/2017
KULDEEP SINGH .....Appellant
Through: Mr.Kuldeep and Mr.Sumit Kumar,
Advocates
versus
AMARJEET SINGH .....Respondent
Through: Mr. Amit Saxena, Ms. Namrata
Bhatia, Ms. Mandakini Sharma, Mr.Vasu Singhal
Advocates
CORAM:
HON'BLE MR. JUSTICE MANOJ KUMAR OHRI
ORDER
% 26.08.2025
1. The present appeal has been filed under Section 378(4) Cr.P.C. by the
appellant/complainant against the judgement dated 14.03.2016 passed by
Additional Chief Judicial Magistrate, Rohini Courts, Delhi in the case
bearing CC No.94/11/10 titled as ‘Kuldeep Singh vs. Amarjeet Singh‘, vide
which the respondent was acquitted of the offense under Section 138 NI Act.
The appellant had approached this Court vide CRL.L.P. No. 371/2016
seeking leave to appeal and the same was granted by this Court vide order
dated 13.12.2017, following which the appeals were duly admitted.
2. The appellant is the complainant under Section 138 of the NI Act who
is aggrieved by the dishonour of the cheques statedly issued by the
respondent. The trial which was initiated on the basis of his complaint has
culminated in a finding of acquittal for respondent vide the impugned
judgement. Naturally, the appellant is aggrieved by the said decision and
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wants to challenge the same.
3. During the course of proceedings, the attention of this Court is drawn
to the recent decision of the Supreme Court in Celestium Financial vs A.
Gnanasekaran etc, reported as 2025 SCC OnLine SC 1320 wherein, it has
been held that the complainant under Section 138 NI Act, who suffers
financial loss and injury on account of the dishonour of cheque, would
qualify as a victim within the meaning of Section 2 (wa) Cr.P.C. It was
further held that such a complainant could maintain an appeal under proviso
to Section 372 CrPC in his own right, without complying with the rigours of
Section 378(4) CrPC. The relevant portion is extracted hereunder:-
“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 of the
CrPC to hold that the 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.
xxx
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 an offence under Section 138 of the Act. Symmetrical to a
victim of an offence, a victim of a deemed offenceunder 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 an 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
premised in accordance with proviso to Section 372 which is the rightThis is a digitally signed order.
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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 of a
dishonour of 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.”
4. To discuss the implications of the aforesaid decision, it would be
prudent to first analyse the statutory matrix. Chapter XXIX of the Cr.P.C.
contains the provisions governing appeals. Section 372 lays down, in
unequivocal terms, that appeals can only be filed in accordance with the
CrPC or any other law in force. Section 374 deals with appeals from
conviction, which we are not concerned with presently. Section 378 lays
down the procedure to be followed in cases of appeals from acquittals. Sub-
section (4) of the said provision in particular, deals with appeals from
acquittals in cases which were instituted on complaints, such as those under
Section 138 of the NI Act. In such a case, the aggrieved complainant has to
apply before the High Court for a special leave to appeal. If the High Court
grants it, the complainant can present such appeal before the High Court.
Section 378 (5) provides for the period of limitation for filing such
application for leave to appeal, and Section 378 (6) states that if the High
Court 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 of
the complainant to prefer an appeal against the order of acquittal is
circumscribed by certain conditions precedent. However, if the complainant
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under the NI Act is also held to be a ‘victim’, then all the rights available to
the victim by the Code would also be extended to such complainant,
including a separate right to appeal. Before discussing the possible
consequences of the above finding, it would be pertinent to understand how
the Code defines and provides for the victim.
6. Section 2 (wa) of Cr.P.C. defines victim in the following fashion:-
“victim” means a person who has suffered any loss or injury caused
by reason of the act oromission for which the accused person has been
charged and the expression “victim” includes his orher guardian or
legal heir;
This definition was added to the Code with effect from 31.12.2009.
This was accompanied by a slew of victim centric changes to the Code, such
as the victim compensation scheme in Section 357A and 357B, free medical
aid to the victims of certain offences under Section 357C, etc. One of the
most important rights which has been provided to the victims is the right to
appeal, which has been inserted as a proviso to Section 372 CrPC. It reads as
under:-
“Provided that the victim shall have a 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,
and such appeal shall lie to the Court to which an appeal ordinarily
lies against the order of conviction of such Court.”
A careful reading of the above proviso would show that the victim can
appeal from three types of orders : a) an order of acquittal, b) a conviction
for a lesser offence or c) imposing inadequate compensation. It also states
that such appeal shall lie to the court to which an appeal ordinarily lies
against the order of conviction of such court. Section 372 is a self-contained
and independent provision which is not to be read conjointly with any other
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provision, including Section 378 Cr.P.C. It applies to acquittals from both
Trial Court and Appellate Court and the appeal would lie in the first
hierarchical superior court. (Ref: Asian Paints limited v. Ram Babu &Anr1,
Mahabir v. State of Haryana2)
7. Introduction of this proviso does, in effect, two things. One, it
provides the victim an individual right to appeal against an order of acquittal
which 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 obtained
from the High Court. Secondly, there is a difference in the forum to which
appeals can be preferred. While under Section 378(4) Cr.P.C, after granting
special leave to appeal, the High Court would hear the appeal. However, in
case of an appeal preferred by the victim under Section 372 CrPC, the same
lies before the Court to which an appeal ordinarily lies against the order of
conviction of such Court. Section 143 of the NI Act states that all offences
under Chapter XVII of the Act, including an offence under Section 138 shall
be tried by a Judicial Magistrate of First Class or by a Metropolitan
Magistrate. An appeal against conviction, and thus an appeal preferred by
the victim, would lie before the Sessions Court.
8. There are a number of reasons for this difference in the mechanism
for a victim and a complainant. Rights of a victim are placed on par with the
rights of the accused who suffers a conviction and as a matter of right can
prefer an appeal under Section 374 of the CrPC, without being subject to
any conditions. The victim’s right to prefer an appeal is also absolute, as is
reflected from the language of the proviso to Section 372 CrPC. It is also
1
SLP (Crl.) No.(s) 9888/2024, decided on 14.07.2025
2
2025 SCC OnLine SC 184
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worth noting that the parliament has not amended Section 378 CrPC to
circumscribe the victim’s appeal with the similar limitations as that of the
complainant.
9. In light of the Supreme Court’s recent clarification of the legal
position, it is now evident that the appellant, being the complainant under
Section 138 of NI Act, is also entitled to file an appealagainst the impugned
judgment of acquittal before the Sessions Court, since he is considered to be
a victim. If this Court were to proceed to hear and decide the appeal at this
stage, it could deprive the parties of an available forum i.e., this Court, for
further challenge.
10. A Co-ordinate Bench of this Court in Vijender Singh v. Mahender Pal
@ Bindu3while placing reliance on Celestium Financial(Supra), had
relegated the parties to the Sessions Court. The differences in the remedies
available under Section 378(4) and proviso to Section 372 CrPC were also
discussed. The relevant portion is extracted hereunder:-
“21. It has been argued on behalf of the Petitioner that in Celestium
Financial, (supra) the Apex Court has given an option to the
Complainant to Appeal either under Section 372 Cr.P.C. or avail the
remedy under Section 378(4) Cr.P.C.
22. This argument is totally without any basis for the anomaly in
adopting this approach is evident from the fact that in case, the Leave
to Appeal is denied under Section 378(4) Cr.P.C, the Complainant
loses a chance to agitate his Appeal on merits as a matter of right in
the first Appeal.
23. Similar facts were involved in Celestium Financial, (supra)
whereby the Apex Court while setting-aside the Order dismissing the
Leave to Appeal, had directed that the First Appeal as a matter of
right be filed under proviso to Section 372 Cr.P.C.
24. The second aspect of the argument is that while an Appeal under
proviso to Section 372 Cr.P.C is a matter of right, but under Section
378(4) Cr.P.C., Leave has to be sought. The two remedies cannot be
equated as an alternate to each other.
3
decided on 23.07.2025 in CRL.L.P. 215/2021
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25. The third aspect is that by conferring a right of First Appeal as a
matter of right, he would have an option to further challenge it by
way of Revision or as per law. If Section 378(4) Cr.P.C. is invoked
by the Complainant, then he loses his right of First Appeal. The
contention so raised on behalf of the Complainant is, therefore,
without any merit.
26. It is thus, held that a Complainant in a Complaint under Section
138 of N.I. Act, indeed is a victim, who has a substantial right to
Appeal under proviso to Section 372 Cr.P.C. to the Court, which is
immediately superior in hierarchy. This implies that the right to
Appeal against the Judgment of acquittal by the learned Metropolitan
Magistrate, in this Case under Section 138 of N.I. Act, lies before the
Court of Sessions.”
11. Other benches of this Court in Krishan Lal v. Wasim Khan4 and
Girish Rehani v. M/s Keltech Infrastructure Ltd. &Ors.5 in cases where the
leave to appeal under Section 378 (4) Cr.P.C. had already been granted,
keeping in view the import of the decision in Celestium Financial(Supra),
transferred the appeal to the Court of Sessions.
12. Similar view has been taken by the High Court of Andhra Pradesh in
Charbel India v. State of Andhra Pradesh6, High Court of Madhya Pradesh
in Manorama Kankane v. Narendra Kumar Shukla7, Late Kisan Sewa
Kendra v. Pritam Singh8, Smt. UrmitMadrah v. Samarpan Jain9, High Court
of Chattisgarh in Neelam Sahu v. NaradNagwanshi10 and Smt. Kirti Kurian
v. Ajay Singh11; and Karnataka High Court in Sidagondappa v.
ShafiAhammad12and Sri TH Lenkappa v. Sri Sanjay &Anr.13
4
Decided on 28.07.2025 in CRL.A. 783/2018
5
decided on 11.08.2025 in Crl.A 337/2025
6
2025SCC OnLine AP 2815
7
2025SCC OnLine MP 4779
8
2025SCC OnLine MP 4818
9
decided on 21.07.2025 in Criminal Appeal No. 11872 of 2022
10
decided on 16.07.2025 in ACQA No. 340 of 2018
11
decided on 16.07.2025 in ACQA No. 198 of 2019
12
decided on 31.07.2025 in CRL.A. No. 20021/2018
13
decided on 23.07.2025 in CRL.A. No. 146/2015
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13. An overall assessment of the Catena of decisions discussed
hereinabove reveals that the Celestium Financial(Supra) has been relied
upon by this Court as well other High Courts across the country, to relegate
the parties back to the Sessions Court with directions to the Court to
consider these appeals filed under Section 378(4) Cr.P.C as if they had been
filed under Section 372 Cr.P.C. This Court feels no reason to take a contrary
view in the present case.
14. Learned counsels for the parties submit that they have no objection if
the matter is remanded back to the Sessions Court.
15. Considering the above noted legal position, it is deemed fit to direct
that the present appeal be transferred to the concerned Appellate Court of
Sessions and be considered as an appeal under the proviso to Section 413 of
BNSS(formerly Section 372 of CrPC) and numbered accordingly.
16. The Registry is directed to transfer entire record of the case including
the requisitioned copies of TCR, to the concerned Principal District &
Sessions Judge, who may assign it to the concerned Appellate Court/ learned
ASJ having the jurisdiction and for which purpose, it would be listed before
the concerned Principal District & Sessions Judge, at the first instance, on
17.09.2025 for directions.
17. In case there are applications pending for Condonation of Delay, the
same be also transferred to be considered by the learned ASJ in accordance
with law.
18. Considering that the matter has been pending for considerable time,
learned Appellate Court is requested to make an endeavour to dispose the
matter as expeditiously as possible.
19. It is made clear that this Court has not made any observations as to the
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merits of the case and all rights and contentions of the parties are left open to
be agitated before the Court concerned.
20. A copy of the order be sent to the concerned Principal District and
Sessions Judge for necessary information and compliance.
MANOJ KUMAR OHRI, J
AUGUST 26, 2025
na
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