Cheque-bounce complainants can appeal acquittals before Sessions Courts, Gujarat HC rules while transferring case under victim-right provision

The original complainant appealed under Section 378 of the Code of Criminal Procedure, 1973 (“CrPC”) against the Trial Court’s order dated 24 December 2018 acquitting the accused.

Before considering the merits, the High Court considered the effect of Celestium Financial v. A. Gnanasekaran, which held that a complainant in a prosecution under Section 138 of the Negotiable Instruments Act, 1881 (“NI Act”) is a victim entitled to appeal under the proviso to Section 372 CrPC before the immediately superior court, ordinarily the Sessions Court.

The Court was also informed that the issue was pending before the Supreme Court for authoritative consideration.

Whether an original complainant’s appeal against acquittal in a Section 138 NI Act case should be transferred to the Sessions Court and treated as an appeal under the proviso to Section 372 CrPC / Section 413 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”).

Whether the High Court should examine the merits of the acquittal in this appeal.

Under the proviso to Section 372 CrPC, a victim may appeal against an acquittal to the court to which an appeal ordinarily lies from the order of conviction; the Court referred to Section 413 BNSS as the corresponding provision.

In Celestium Financial v. A. Gnanasekaran, the Supreme Court held that a complainant in a Section 138 NI Act case is also the victim of the alleged cheque dishonour and may appeal under the proviso to Section 372 CrPC before the immediately superior court, without proceeding under Section 378 CrPC.

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

The Celestium Financial issue was, however, pending consideration before a larger Bench of the Supreme Court.

Applying the approach in Celestium Financial and the cited Gujarat High Court decisions, the Court concluded that the complainant’s appeal should be placed before the Sessions Court as an appeal under the victim’s-appeal provision, rather than decided by the High Court under Section 378 CrPC.

Although the Supreme Court’s consideration of the issue was pending, the Court directed transfer subject to the final outcome of that reference.

It expressly declined to examine the merits of the acquittal.

That court was directed to treat and number 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 made no determination on the merits.