A Section 138 complainant may appeal an acquittal as a victim before the Sessions Court.

The original complainant appealed under Section 378 of the Code of Criminal Procedure, 1973, / Section 419(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023, against the Magistrate’s order acquitting the accused of an offence under Section 138 of the Negotiable Instruments Act, 1881

The parties submitted that, following Celestium Financial v. A. Gyanasekaran, a complainant in a Section 138 case may appeal as a victim under the proviso to Section 372 CrPC / Section 413 BNSS before the Sessions Court, the court immediately superior in the hierarchy

The State pointed out that the issue was pending before a larger Bench of the Supreme Court

Whether an appeal by a complainant against acquittal in a Section 138 NI Act case should be heard by the Sessions Court as a victim’s appeal under the proviso to Section 372 CrPC / Section 413 BNSS

Whether the High Court should transfer the appeal to the Sessions Court while the issue remained subject to the larger Bench’s decision

The proviso to Section 372 CrPC gives a victim a right to appeal against acquittal to the court to which an appeal ordinarily lies from that court; Section 413 BNSS provides the corresponding right under the BNSS

In Celestium Financial v. A. Gyanasekaran, the Supreme Court held that a complainant/payee in a Section 138 NI Act case is also the victim of the alleged cheque dishonour and may appeal under the victim’s appeal provision before the immediately superior court, without proceeding under Section 378 CrPC

The High Court also referred to Shivsinh Ganpatsinh Solanki v. State of Gujarat and Thakar Hariprasad Dalsukhram v. State of Gujarat

Applying the authorities cited, the Court treated the complainant’s appeal as one falling within the victim’s appeal route under Section 372 CrPC / Section 413 BNSS, for determination by the Sessions Court rather than the High Court

Although the State noted that the Supreme Court had referred the issue for authoritative consideration by a larger Bench, the Court directed transfer subject to the final outcome of that reference; it did not examine the acquittal on its merits

The Sessions Court was directed to register it 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 left the merits undecided