A cheque-dishonour complainant may appeal acquittal as a victim under Section 372 CrPC before the Sessions Court.

The appellant, the original complainant, filed an appeal under Section 378 of the Code of Criminal Procedure, 1973 (CrPC), alternatively invoking Section 419 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS), challenging the judgment dated 8 April 2021 by which the Chief Judicial Magistrate, Jam-Khambhaliya acquitted the accused in a prosecution under Section 138 of the Negotiable Instruments Act, 1881 (NI Act).

During hearing, the parties relied on Celestium Financial v. A. Gnanasekaran, under which a complainant in a Section 138 prosecution is treated as a “victim” entitled to appeal against acquittal under the proviso to Section 372 CrPC before the immediately superior court, namely the Sessions Court.

Although the State pointed out that the issue was pending consideration before a larger Bench of the Supreme Court, the Court proceeded to dispose of the appeal in accordance with the prevailing decisions.

1. Whether the original complainant in a prosecution under Section 138 of the NI Act is a “victim” entitled to prefer an appeal against acquittal under the proviso to Section 372 CrPC, or the corresponding provision of the BNSS, before the Sessions Court.

2. Whether the appeal filed before the High Court under Section 378 CrPC/Section 419 BNSS should be transferred to the concerned Sessions Court for consideration as a victim’s appeal under Section 372 CrPC/Section 413 BNSS.

The Court considered Section 378 CrPC, governing appeals against acquittal, and Section 372 CrPC, whose proviso confers an independent right of appeal upon a victim against acquittal, conviction for a lesser offence, or inadequate compensation; the corresponding BNSS provisions were identified as Sections 419 and 413 respectively.

Section 138 of the NI Act creates the offence of cheque dishonour and is tried through the criminal procedure framework.

Relying on Celestium Financial v. A. Gnanasekaran, the Court applied the principle that the payee or holder of a dishonoured cheque is both the complainant and the victim, and may appeal under the proviso to Section 372 CrPC without seeking special leave under Section 378(4) CrPC.

The Court also relied on Shivsinh Ganpatsinh Solanki v. State of Gujarat and Thakar Hariprasad Dalsukhram v. State of Gujarat, reported in 2026 SCC OnLine Guj 569, concerning the appropriate appellate forum for such appeals.

Applying the principles in Celestium Financial, the Court held that the complainant in a Section 138 NI Act case suffers the direct impact of the alleged cheque dishonour and therefore falls within the statutory concept of “victim.” Consequently, the complainant’s appeal against acquittal lies under the proviso to Section 372 CrPC before the court immediately superior to the trial court, namely the Sessions Court, rather than being adjudicated by the High Court as an appeal under Section 378 CrPC.

The Court noted the State’s submission that the issue was pending before the Supreme Court in SLP (Criminal) No. 12350 of 2024 and might be referred to a larger Bench, but nevertheless followed the existing legal position and directed procedural transfer without examining the merits of the acquittal.

The Sessions Court was directed to treat and number the matter as an appeal under the proviso to Section 372 CrPC or Section 413 BNSS and issue notice to the parties.

The Court further requested expeditious disposal, while expressly clarifying that it had not considered the merits of the acquittal.