M/S Captainprecast Situated At Garhi Chajju Road v. M/S Pavitra Dhaba

CRM-A-1555-2024

IN THE HIGH COURT OF PUNJAB & HARYANA

AT CHANDIGARH CRM-A-1555-2024 Date of Decision: 05.12.2025 M/s Captain Precast ......Appellant

Versus

M/s Pavitra Dhaba and another ......Respondents

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. Susheel Gautam, Advocate for the appellant.

*** ANOOP CHITKARA J.

Criminal Complaint No. NACT/94/2019 titled "M/s Captain Precast through its Prop. Bijender v/s M/s Pavitra Dhaba etc" decided on 18.09.2024 1.

Aggrieved by dismissal of complaint in default, the complainant had come up before this Court by filing the above-mentioned leave to appeal. 2.

Counsel for the complainant submits that the complainant was attending most of the dates and has referred to the order sheet.

3.

I have perused the same.

4.

On 18.09.2024, simply because of absence on one date, the complaint was dismissed in default. There is no mention about any message sent to the counsel. On the face of it, it is a matter where the impugned judgment deserves to be set aside but given the judgment passed by the Hon'ble Supreme Court passed in "Celestium Financial v. A. Gnanasekaran, 2025(3) RCR(Criminal) 208, decided on 08.04.2025", the appropriate Court should be the Sessions Court.

5.

In Celestium Financial v. A. Gnanasekaran, 2025(3) RCR(Criminal) 208, decided on 08.04.2025, Hon'ble Supreme Court holds, [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 complainant is indeed the victim 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. JYOTI SHARMA 2025.12.09 17:21 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh

CRM-A-1555-2024 [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.

[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 must be given its full effect to by a 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-section (4) of Section 378 of the CrPC. 6.

In BNSS, 2023, S. 413 is analogous to S. 372 CrPC, 1973, and thus the ratio of Celestium Financial shall apply.

7.

However, the complainant should not face the burden of filing an appeal again before the Sessions Court because the law has been interpreted recently. Therefore, in the interest of Equity, Justice, and Fair play, it would be appropriate to refer this matter to the Sessions Court, where it will be registered as an Appeal under the Proviso to S. 372 CrPC/413 BNSS, 2023, as applicable. If there is any objection regarding whether it is an appeal under the CrPC or BNSS, it shall be registered under the Proviso to S. 413 BNSS, 2023, because the CrPC, 1973, has been repealed.

8.

Given above, the Registry is to send this file along with the Lower Court's Record, if any, to the concerned Sessions Division.

Leave to appeal is disposed of in the terms mentioned above. All pending application(s), if any, stand disposed of.

(ANOOP CHITKARA) JUDGE 05.12.2025 Jyoti Sharma Whether speaking/reasoned:

Yes Whether reportable:

No.

JYOTI SHARMA 2025.12.09 17:21 I attest to the accuracy and authenticity of this order/judgment High Court, Sector 1, Chandigarh