A Section 138 complainant is a victim entitled to 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”) / 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 the hearing, the parties referred to Celestium Financial v. A. Gnanasekaran, which held that a complainant in a cheque-dishonour case is also a “victim” and may appeal against acquittal under the proviso to Section 372 CrPC before the immediately superior appellate court, namely the Sessions Court.

The Court was also informed that the correctness of Celestium Financial was pending consideration before a larger Bench of the Supreme Court in SLP (Crl.) No. 12350 of 2024.

1. Whether the original complainant in a prosecution under Section 138 of the NI Act is to be treated as a “victim” entitled to appeal against acquittal under the proviso to Section 372 CrPC / Section 413 BNSS before the Sessions Court, rather than pursuing an appeal under Section 378 CrPC / Section 419 BNSS before the High Court.

2. Whether the pending appeal should be transferred to the concerned Sessions Court for consideration as a victim’s appeal, notwithstanding the pending reference concerning the correctness of Celestium Financial.

The Court applied Section 138 of the NI Act, which creates the offence of dishonour of cheque, together with the appellate provisions under the CrPC—Section 372 and its proviso, conferring a right of appeal on a victim, and Section 378, governing appeals against acquittal—and the corresponding provisions under the BNSS, namely Sections 413 and 419.

Relying on Celestium Financial v. A. Gnanasekaran, 2025 (3) GLH 747, the Court applied the rule that the payee or holder of a dishonoured cheque is the victim of the deemed offence under Section 138 NI Act and may file an appeal under the proviso to Section 372 CrPC without seeking special leave under Section 378(4) CrPC; such appeal lies before the court immediately superior to the trial court, ordinarily the Sessions Court.

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.

Since the appellant was the complainant and alleged payee/holder affected by the dishonour of the cheque, the principle in Celestium Financial treated it as the “victim” for purposes of the proviso to Section 372 CrPC.

Consequently, the appropriate appellate forum was the Sessions Court, which is immediately superior in hierarchy to the Magistrate that rendered the acquittal, rather than the High Court under the general State/complainant appeal mechanism in Section 378 CrPC.

Although the Additional Public Prosecutor pointed out that the issue was pending before a larger Bench of the Supreme Court, the High Court followed the existing law and directed transfer of the matter, without deciding the merits of the acquittal or expressing any final view on the pending reference.

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

The High Court expressly clarified that it had not examined the merits of the case.