A Section 138 complainant may appeal acquittal as a victim 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 26 November 2018 by which the 2nd Additional Chief Judicial Magistrate, Mehsana acquitted the accused of an offence 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 Section 138 complainant 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.

The Court was also informed that the issue 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/Section 413 BNSS before the immediately superior Sessions Court.

Whether the pending appeal filed under Section 378 CrPC/Section 419 BNSS should be transferred to the concerned Sessions Court and treated as an appeal under the proviso to Section 372 CrPC/Section 413 BNSS.

Section 378 CrPC governs appeals against acquittal by the State or complainant, while the proviso to Section 372 CrPC confers an independent right of appeal on a victim against acquittal, conviction for a lesser offence, or inadequate compensation; the corresponding BNSS provision is Section 413.

Section 138 of the NI Act creates a deemed criminal offence arising from cheque dishonour, and the complainant/payee or holder of the cheque is also the victim of that offence.

Relying on Celestium Financial v. A. Gnanasekaran, the Court held that such complainant may invoke the proviso to Section 372 CrPC without seeking special leave under Section 378(4), and must file the appeal before the court immediately superior in hierarchy, ordinarily the Sessions Court.

The Court also relied on Shivsinh Ganpatsinh Solanki v. State of Gujarat and Thakar Hariprasad Dalsukhram v. State of Gujarat.

Applying the above principles, the Court treated the appellant, as the complainant/payee allegedly affected by dishonour of the cheque, as the “victim” for purposes of the proviso to Section 372 CrPC/Section 413 BNSS.

Consequently, the statutory appellate forum was the immediately superior Sessions Court rather than the High Court in the form in which the appeal had been instituted under Section 378 CrPC/Section 419 BNSS.

Although the legal issue was pending before a larger Bench of the Supreme Court, the Court followed the existing decisions and directed that the matter be transferred, with its ultimate consideration subject to the final outcome of the reference.

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

The Registry was directed to transfer the appeal, the complete record, the certified copy of the impugned judgment, and the record and proceedings, if available, to the concerned Sessions Court.

The Sessions Court was directed to treat and number 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, considering its long pendency.