A Section 138 complainant, as a victim, must appeal acquittal under Section 372 before the Sessions Court.

The appellant, the original complainant, filed an appeal under Section 378 of the Code of Criminal Procedure, 1973 (“CrPC”) against the judgment dated 29 March 2012 by which the 9th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surat, acquitted the accused in a prosecution under Section 138 of the Negotiable Instruments Act, 1881 (“NI Act”).

During the hearing, the parties referred to Celestium Financial v. A. Gnanasekaran, wherein the Supreme Court held that a complainant in a Section 138 NI Act case is a “victim” entitled to appeal under the proviso to Section 372 CrPC before the immediately superior court, namely, the Sessions Court.

The State submitted that the Supreme Court’s decision was pending reconsideration in Special Leave to Appeal (Crl.) No. 12350/2024 and that the matter should consequently be dealt with subject to the outcome of that reference.

The accused consented to remand or transfer of the appeal to the Sessions Court.

Whether a complainant in a prosecution under Section 138 of the NI Act is a “victim” entitled to appeal against an order of acquittal under the proviso to Section 372 CrPC, or the corresponding provision of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”).

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

Whether the High Court should examine the merits of the acquittal at that stage.

The Court applied Section 378 CrPC, governing appeals against acquittal, and the proviso to Section 372 CrPC, which confers on a victim a right to appeal against acquittal, conviction for a lesser offence, or inadequate compensation.

Under the corresponding BNSS framework, the Court referred to Sections 413 and 419.

Section 138 of the NI Act creates the offence of dishonour of cheque, while Section 143 incorporates the procedure of the CrPC for its trial.

Relying on Celestium Financial v. A. Gnanasekaran, reported in 2025 (3) GLH 747, and the Gujarat High Court decisions in Shivsinh Ganpatsinh Solanki v. State of Gujarat and Thakar Hariprasad Dalsukhram v. State of Gujarat, the Court held that the complainant/payee or holder of the dishonoured cheque is also the victim of the deemed offence under Section 138 NI Act and may appeal under the proviso to Section 372 CrPC before the court immediately superior to the trial court, ordinarily the Sessions Court.

The High Court noted that the appellant was the original complainant in a Section 138 NI Act prosecution and therefore fell within the category of victim recognised in Celestium Financial.

Consequently, the appeal was required to be treated not as a Section 378 CrPC appeal requiring consideration by the High Court, but as a victim’s appeal under the proviso to Section 372 CrPC before the immediately superior appellate court—the concerned Sessions Court.

Although the State pointed out that the legal issue was pending before a larger Bench of the Supreme Court, the High Court followed the existing applicable precedent and directed transfer without adjudicating the merits of the acquittal.

The Court also directed that the transferred matter remain subject to the final outcome of the Supreme Court proceedings.

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

The Court clarified that it had not examined the merits of the acquittal and directed the lower appellate court to endeavour to dispose of the matter expeditiously.