KESAV CREDIT CO-OPERATIVE SOCIETY LTD. THRO DILIPSINHJI JASHVANTSINHJI GOHIL vs BHAVESHBHAI NANDRAMBHAI NIMAVAT

Court
Gujarat High Court

R/CR.A/2037/2025 JUDGMENT DATED: 16/10/2026
(GJHC240141412025)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2037 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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Approved for Reporting Yes No
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KESAV CREDIT CO-OPERATIVE SOCIETY LTD. THRO DILIPSINHJI
JASHVANTSINHJI GOHIL
Versus
BHAVESHBHAI NANDRAMBHAI NIMAVAT & ANR.
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Appearance:
MR YOGESHKUMAR A RATANPARA(7260) for the Appellant(s) No. 1
MS JYOTI BHATT ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 2
RULE UNSERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM: HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

Date : 16/10/2026

ORAL JUDGMENT
1. The present appeal is filed by the appellant – original
complainant under Section 419 of the Bharatiya Nagrik Suraksha
Sanhita, 2023 (hereinafter referred to as ‘BNSS’ for short) against the
nd
judgment and order dated 02.05.2024 passed by the learned 2
Additional Chief Judicial Magistrate, Junagadh (hereinafter be referred
to as “the Trial Court), whereby the learned trial Court had acquitted
the respondent - accused.
2. Heard learned counsel appearing for the respective parties.
3. It is submitted that this matter is required to be transferred in
view of the recent decision of the Hon’ble Supreme Court in the case
of Celestium Financial Vs. A.Gnanasekaran Etc . reported in
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R/CR.A/2037/2025 JUDGMENT DATED: 16/10/2026
(GJHC240141412025)
2025 (3) GLH 747 wherein the Hon’ble Supreme Court has held that
the original complainant to be considered as a victim of the offence
under Section 138 of the Act and, therefore, the complainant has right
to file an appeal under Section 372 of the Code before the lower
Appellate Court i.e. immediate Sessions Court before the District and
the judgment dated 22.12.2025 rendered in Criminal Misc.
Application No.12753 of 2019 with Criminal Misc. Application No.
12908 of 2019.
4. Before entering into the merits of this case, this Court deems it
proper to refer to the decision rendered by this Court in the case of
Shivsinh Ganpatsinh Solanki Vs. State of Gujarat being Criminal
Miscellaneous Application Nos. 12753 of 2019 with 12908 of 2019 and
the decision of the Hon'ble Supreme Court in the case of Celestium
Financial Vs. A. Gyanasekaran (supra) wherein the Hon’ble
Supreme Court has observed and held that the complainant, in a
complaint under Section 138 of the N.I. Act, considered to be a victim,
has a specific right to file an appeal against the order of acquittal
under Section 372 of the Code / Section 413 of the BNSS to the Court
which is immediately superior in hierarchy i.e. the Sessions Court.
5. In view of the above, it is submitted that let the matter be
remanded back to the concerned Sessions Court.
6. 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
M/s. Everest Automobiles Vs. M/s. Rajit 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.
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Therefore, the matter is to be decided subject to the final outcome of
the reference.
7. In the case of Celestium Financial Vs. A. Gyanasekaran
(supra), the Hon’ble Supreme Court has held and observed in paras –
7.8, 7.9 and 7.12 as under:-
“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.
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 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 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 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 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.
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R/CR.A/2037/2025 JUDGMENT DATED: 16/10/2026
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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 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.
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R/CR.A/2037/2025 JUDGMENT DATED: 16/10/2026
(GJHC240141412025)
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.”
8. In view of the said submissions and the decision of the Hon’ble
Supreme Court in the case of Celestium Financial Vs. A.
Gyanasekaran (supra) and decision of this Court in the case of
Thakar Hariprasad Dalsukhram Vs. State of Gujarat and
another reported in 2026 SCC OnLine Guj 569 , 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
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.
9. 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.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
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