### Complainant in Section 138 NI Act is "Victim" entitled to file acquittal appeal before Sessions Court.

The appellant (original complainant) filed a complaint under Section 138 of the Negotiable Instruments (NI) Act, 1881, regarding the dishonor of a cheque.

The 6th Additional Chief Judicial Magistrate, Vadodara, passed a judgment on 29.01.2018 acquitting the respondent-accused.

The appellant initially preferred this appeal against acquittal before the High Court of Gujarat under Section 378 of the Criminal Procedure Code (CrPC) / Section 419 of the Bharatiya Nagrik Suraksha Sanhita (BNSS), 2023.

During the pendency of the appeal, the court examined the appropriate forum for such appeals in light of recent legal developments regarding the status of a complainant as a "victim".

1. Whether a complainant in a case under Section 138 of the NI Act is considered a "victim" entitled to file an appeal against acquittal before the Sessions Court under the proviso to Section 372 of the CrPC / Section 413 of the BNSS.

2. Whether the current appeal pending before the High Court should be transferred to the jurisdictional Sessions Court for adjudication.

The court primarily applied the proviso to Section 372 of the CrPC (corresponding to Section 413 of the BNSS), which grants a "victim" the right to prefer an appeal against an order of acquittal.

The court relied heavily on the precedent set by the Supreme Court in Celestium Financial v. A. Gnanasekaran Etc. [2025 (3) GLH 747], which established that a complainant under Section 138 of the NI Act is indeed a "victim" as defined under Section 2(wa) of the CrPC because they suffer loss due to the dishonor of a cheque.

The court also referenced Shivsinh Ganpatsinh Solanki v. State of Gujarat (Criminal Misc. Application No. 12753/2019), affirming that such appeals lie before the immediate superior court in the hierarchy, i.e., the Sessions Court.

The court reasoned that the right of a victim to appeal is an absolute right that should not be circumscribed by the requirement of seeking "leave to appeal" under Section 378(4) of the CrPC, which applies to "complainants".

Following the Celestium Financial ruling, the court observed that in Section 138 proceedings, the complainant and the victim are the same person; therefore, the proviso to Section 372 provides a superior, unconditional right to appeal to the Sessions Court.

Although the State pointed out that the issue is currently referred to a larger bench in the Supreme Court [Special Leave to Appeal (Crl.) No. 12350/2024], the High Court determined that the prevailing law as of the judgment date necessitates the transfer of such matters to the Sessions Court to ensure procedural consistency.

The appeal was disposed of with a direction to the Registry to transfer the entire record and proceedings to the concerned Sessions Court.

The Sessions Court is directed to treat the matter as an appeal under the proviso to Section 372 of the CrPC / Section 413 of the BNSS and to dispose of it expeditiously without being influenced by the merits of the current order.