A Section 138 complainant is a victim entitled to appeal acquittal under Section 372.

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”), challenging the judgment dated 19 August 2023 by which the Special Negotiable Instruments Act Court, Ahmedabad, acquitted the respondent-accused of the offence under Section 138 of the Negotiable Instruments Act, 1881 (“NI Act”).

During hearing, the parties relied on Celestium Financial v. A. Gnanasekaran, 2025 (3) GLH 747, wherein the Supreme Court held that a complainant in a Section 138 prosecution is also a “victim” and may appeal against acquittal under the proviso to Section 372 CrPC before the immediately superior court, namely, the Sessions Court.

The State informed the Court that the Supreme Court’s decision in Celestium Financial was pending reconsideration in Special Leave to Appeal (Crl.) No. 12350 of 2024 and that the issue had been referred for authoritative determination by a larger Bench.

Whether the original complainant in a prosecution under Section 138 of the NI Act is a “victim” entitled to appeal against acquittal under the proviso to Section 372 CrPC / corresponding provision of the BNSS before the Sessions Court, rather than under Section 378 CrPC before the High Court?

Whether the pending appeal before the High Court should be transferred to the concerned Sessions Court and treated as an appeal under the proviso to Section 372 CrPC / Section 413 BNSS, subject to the final outcome of the Supreme Court’s reference?

The Court applied Section 138 of the NI Act, which creates the offence of dishonour of a cheque, together with the appellate framework under the proviso to Section 372 CrPC and the corresponding provision under Section 413 BNSS, permitting a victim to appeal against acquittal, conviction for a lesser offence, or inadequate compensation.

Relying on Celestium Financial v. A. Gnanasekaran, the Court accepted the principle that the complainant/payee or holder of the dishonoured cheque is also the victim of the deemed offence under Section 138 and may invoke the proviso to Section 372 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, 2026 SCC OnLine Guj 569, concerning the appropriate appellate forum for such appeals.

The High Court noted that the appeal had been instituted as an appeal against acquittal under Section 378 CrPC/Section 419 BNSS, but the prevailing interpretation in Celestium Financial treated the complainant in a Section 138 NI Act prosecution as the victim of the cheque dishonour.

Consequently, the complainant’s appeal was required to be pursued under the victim’s independent right of appeal under the proviso to Section 372 CrPC, before the court immediately superior to the trial court, namely, the Sessions Court.

Although the State pointed out that the issue was pending before a larger Bench of the Supreme Court, the High Court directed transfer in accordance with the existing legal position and made the transferred proceedings subject to the final outcome of that reference.

The Court expressly refrained from examining the merits of the acquittal.

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

The Sessions Court was further requested to endeavour to decide the matter expeditiously, and the High Court clarified that it had not considered the merits of the acquittal.