VANKER GEMARBHAI DEVABHAI vs STATE OF GUJARAT

Court
Gujarat High Court

R/CR.A/1167/2012 (GJHC240437382012) JUDGMENT DATED: 03/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1167 of 2012

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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Approved for Reporting Yes No
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VANKER GEMARBHAI DEVABHAI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR MM TIRMIZI(1117) for the Appellant(s) No. 1
MR MAHESHB BARIYA(2234) for the Opponent(s)/Respondent(s) No. 2,3,4,5
MS JIRGA JHAVERI ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2,3,4,5
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CORAM: HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK

Date : 03/09/2026

JUDGMENT
1. The present appeal is filed by the appellant – original
complainant under Section 378 of the Criminal Procedure Code, 1973
(hereinafter referred to as ‘CrPC’ for short) against the judgment and
order dated 17.12.2011 passed by the learned Judicial Magistrate,
First Class, Sami (hereinafter be referred to as “the trial Court”).
2. The appellant - original complainant had filed the complaint
against the respondents-accused under Sections 427, 506(2) and 114
of the Indian Penal Code. During the course of investigation and after
considering the documents, the police found sufficient material and
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filed charge-sheet in the trial Court. The trial Court recorded the plea
and as the accused pleaded not guilty to the offence, therefore, as the
offence was triable by the trial Court, the trial was proceeded and the
impugned judgment and order was delivered by the trial Court on
17.12.2011 acquitting the respondents-accused from the charges
levelled against them.
3. Heard learned counsel appearing for the respective parties.
4. This matter is required to be transferred in view of the decision
of the High Court of Chhattisgarh rendered in the case of State of
Chhattisgarh, Through Its Station House Officer Vs. Mohanlal Bagde,
reported in [2019] SCC OnLine Chh 102 wherein, the Court has
referred the earlier decision of the Hon’ble Supreme Court rendered in
case of of Subhash Chand vs State (Delhi Administration), reported in
(2013) 2 SCC 17, wherein, the Hon’ble Supreme Court has observed
and held in para-18 as under :
“18. If we analyse Section 378(1)(a) & (b), it is clear that
the State Government cannot direct the Public Prosecutor
to file an appeal against an order of acquittal passed by a
Magistrate in respect of a cognizable and non- bailable
offence because of the categorical bar created by Section
378(1)(b). Such appeals, that is appeals against orders of
acquittal passed by a Magistrate in respect of a cognizable
and non-bailable offence can only be filed in the Sessions
Court at the instance of the Public Prosecutor as directed
by the District Magistrate. Section 378(1)(b) uses the
words "in any case" but leaves out orders of acquittal
passed by a Magistrate in respect of a cognizable and non-
bailable offence from the control of the State Government.
Therefore, in all other cases where orders of acquittal are
passed appeals can be filed by the Public Prosecutor as
directed by the State Government to the High Court."
5. It would also be appropriate to refer to the decision of the High
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Court of Punjab & Haryana rendered in case of Mohanlal Vs. Gaurav
Kumar and Anr., reported in 2025 PHHC 162308, wherein the Court
has observed and held in para-3 as under :
“3. The Hon’ble Supreme Court in M/s. Celestium
Financial vs. A.Gnanasekaran Etc., 2025(3) RCR
(Criminal) 208, after considerable discussion and
comparative interpretation of Sections 372 and 378(4)
of Cr.P.C., concluded that the victim has a right to file
an appeal under Section 372 of Cr.P.C. before the
Court of Sessions.”
6. In the case of Celestium Financial Vs. A. Gyanasekaran (supra),
the Hon’ble Supreme Court has held and observed in para – 7.12 as
under:-
“7.12 The reasons for the above distinction are
not far to see and can be elaborated as follows:
Firstly, the victim of a crime must have an absolute
right to prefer an appeal which cannot be
circumscribed by any condition precedent. In the
instant case, a victim under Section 138 of the Act,
i.e., a payee or the holder of a cheque is a person who
has suffered the impact of the offence committed by a
person who is charged of the offence, namely, the
accused, whose cheque has been dishonoured.
Secondly, the right of a victim of a crime must be
placed on par with the right of an accused who has
suffered a conviction, who, as a matter of right can
prefer an appeal under Section 374 of the CrPC. A
person convicted of a crime has the right to prefer an
appeal under Section 374 as a matter of right and not
being subjected to any conditions. Similarly, a victim
of a crime, whatever be the nature of the crime,
unconditionally must have a right to prefer an appeal.
Thirdly, it is for this reason that the Parliament
thought it fit to insert the proviso to sub-section 372
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without mandating any condition precedent to be
fulfilled by the victim of an offence, which expression
also includes the legal representatives of a deceased
victim who can prefer an appeal. On the contrary, as
against an order of acquittal, the State, through the
Public Prosecutor can prefer an appeal even if the
complainant does not prefer such an appeal, though of
course such an appeal is with the leave of the court.
However, it is not always necessary for the State or a
complainant to prefer an appeal. But when it comes to
a victim’s right to prefer an appeal, the insistence on
seeking special leave to appeal from the High Court
under Section 378(4) of the CrPC would be contrary to
what has been intended by the Parliament by insertion
of the proviso to Section 372 of the CrPC.
Fourthly, the Parliament has not amended Section 378
to circumscribe the victim’s right to prefer an appeal
just as it has with regard to a complainant or the State
filing an appeal. On the other hand, the Parliament
has inserted the proviso to Section 372 so as to
envisage a superior right for the victim of an offence
to prefer an appeal on the grounds mentioned therein
as compared to a complainant.
Fifthly, the involvement of the State in respect of an
offence under Section 138 of the Act is conspicuous by
its absence. This is because the complaint filed under
that provision is in the nature of a private complaint as
per Section 200 of the CrPC and Section 143 of the Act
by an express intention incorporates the provisions of
the CrPC in the matter of trial of such a deemed
offence tried as a criminal offence. Therefore, the
complainant, who is the victim of a dishonour of
cheque must be construed to be victim in terms of the
proviso to Section 372 read with the definition of
victim under Section 2(wa) of the CrPC.”
7. In the decision in case of M/s. Everest Automobiles Vs. M/s.
Rajit Enterprises dated 12.02.2026 passed in Special Leave to Appeal
No.12350 of 2024 the Hon’ble Apex Court observed as under:-
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“Reliance is placed by the learned counsel for the
petitioner on the recent judgment of this Court in
“Celestium Financial vs. A. Gnanasekaran1”. By way of
the said judgment, a co-ordinate Bench of this Court
held that a complainant in a case arising under
Section 138 of the Negotiable Instruments Act, 1881,
is a ‘victim’ who would be entitled to file an appeal
under the proviso to Section 372 of the Code of
Criminal Procedure, 19732. It was further held that
such appeal could be filed against an order of
acquittal under the proviso to Section 372 of the Code
without seeking special leave to appeal under Section
378(4) of the Code.
However, this judgment did not take into account the
earlier decisions of this Court in Satya Pal Singh vs.
State of M.P. and Subhash Chand vs. State (Delhi
Administration), which have a bearing on both the
aspects that were considered in the aforestated
judgment, as they held to the contrary.”
8. Learned Additional Public Prosecutor has pointed out that the
matter in the case of Celestium Financial Vs. A. Gyanasekaran (supra)
is now pending at large before the Hon’ble Supreme Court in case of
M/s. Everest Automobiles Vs. M/s. Ranjit Enterprises in Special Leave
to Appeal (Crl.) No. 12350/2024 wherein the Hon’ble Supreme Court
has observed that it is desirable that a larger Bench gives an
authoritative pronouncement on this issue as it has far-reaching
consequences.
9. In view of the said submissions and the decisions of different
Courts as well as the Hon’ble Supreme Court as aforesaid, this appeal
is disposed of with a direction to the Registry to transfer the appeal to
the concerned Sessions Court. After it is transferred to the concerned
Sessions Court, it has to be treated as an Appeal under the proviso
under Section 372 of the Code / Section 413 of BNSS and numbered
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accordingly and issue notice to the parties. The Registry is directed to
transfer the entire record of the case, including the certified copies of
the order impugned and record & proceedings, if lying with this Court,
to the concerned lower Appellate Court, forthwith.
10. Considering that the matter has been pending for considerable
time, the learned lower Appellate Court is required to make
endeavour to dispose of the matter as expeditiously as possible. It is
clarified that this Court has not gone into the merits of the matter at
this stage.
(HEMANT M. PRACHCHHAK,J)
ANUSRI
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