A Section 138 complainant, as the 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”) and Section 419 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”) against the judgment dated 22 January 2025 of the 29th Additional Chief Judicial Magistrate, Ahmedabad, acquitting the accused of an offence under Section 138 of the Negotiable Instruments Act, 1881 (“NI Act”).

During the appeal, the parties referred to the Supreme Court’s decision in Celestium Financial v. A. Gnanasekaran, which held that a complainant in a Section 138 NI Act proceeding is also a “victim” and may appeal under the proviso to Section 372 CrPC before the immediately superior appellate court, namely, the Sessions Court.

The State also informed the Court that the correctness of the Celestium Financial decision was pending consideration before a larger Bench of the Supreme Court in Special Leave to Appeal (Crl.) No. 12350 of 2024.

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?

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?

Whether the transfer should remain subject to the final outcome of the Supreme Court’s pending reference concerning the legal position stated in Celestium Financial?

The Court considered Section 378 CrPC and Section 419 BNSS concerning appeals against acquittal, and the proviso to Section 372 CrPC and Section 413 BNSS, which confer a right on a victim to appeal against acquittal, conviction for a lesser offence, or an order imposing inadequate compensation.

Relying on Celestium Financial v. A. Gnanasekaran, 2025 (3) GLH 747, the Court applied the rule that the complainant/payee or holder of a dishonoured cheque under Section 138 NI Act is also the victim of the deemed offence and may invoke the victim’s statutory right of appeal without seeking special leave under Section 378(4) CrPC.

The Court also relied on Shivsinh Ganpatsinh Solanki v. State of Gujarat, Criminal Misc. Application Nos. 12753 of 2019 and 12908 of 2019, and Thakar Hariprasad Dalsukhram v. State of Gujarat, 2026 SCC OnLine Guj 569, for the proposition that such an appeal lies before the court immediately superior to the trial court, namely, the Sessions Court.

Applying the above principles, the Court held that the complainant in a Section 138 NI Act proceeding is not merely a complainant but also the person who suffers the impact of the dishonoured cheque and therefore qualifies as a “victim”.

Consequently, the appropriate appellate remedy against the acquittal was an appeal under the proviso to Section 372 CrPC/Section 413 BNSS before the concerned Sessions Court, rather than an appeal under Section 378 CrPC before the High Court.

Although the legal issue was pending before a larger Bench of the Supreme Court, the High Court followed the existing binding decision and directed transfer of the matter, without adjudicating the merits of the acquittal.

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

The lower appellate court was requested to decide the matter as expeditiously as possible, and the High Court expressly clarified that it had not examined the merits of the acquittal.