Complainant in Section 138 NI Act Proceedings is a Victim Entitled to Appeal Acquittal Before Sessions Court.

In brief

The question

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

The court held

The High Court held that the complainant is a victim and the appeal must be heard by the Sessions Court.

It also directed

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, issue fresh notices, and endeavor to dispose of the matter expeditiously.

The Court clarified it did not express any opinion on the merits of the case.

01Facts

The appellant/complainant filed an appeal under Section 378 of the CrPC (and Section 419 of the BNSS) challenging the judgment dated 08.10.2018 by the 2nd Additional Chief Judicial Magistrate, Khambaliya.

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The Trial Court had acquitted the respondent-accused of an offence under Section 138 of the Negotiable Instruments Act, 1881.

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During the pendency of the appeal before the High Court, the legal landscape regarding the forum for such appeals shifted due to recent judicial precedents characterizing complainants as "victims".

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02Issues

i.1. Whether a complainant in a case under Section 138 of the Negotiable Instruments Act is considered a "victim" entitled to file an appeal against acquittal in the Sessions Court under the proviso to Section 372 of the CrPC.

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

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03Law Applied

The court primarily applied the proviso to Section 372 of the Criminal Procedure Code (CrPC) / Section 413 of the Bharatiya Nagrik Suraksha Sanhita (BNSS), which grants a victim the right to appeal against an order of acquittal.

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In Celestium Financial v. A. Gnanasekaran (2025 (3) GLH 747), which held that a complainant under Section 138 of the N.I. Act is a "victim" as defined under Section 2(wa) of the CrPC because they suffer the impact of the dishonored cheque.

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The court also noted the pendency of a reference to a larger bench in Special Leave to Appeal (Crl.) No. 12350/2024 regarding this specific hierarchy of appeals.

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Provisions in the judgment · 9 · Linked ones open on LawLens

Code of Criminal Procedure, 1973 Section 378 Section 372 Section 374 Section 200 Section 2

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 419 Section 413

Negotiable Instruments Act, 1881 Section 138 Section 143

04Reasoning

The Court observed that since the Supreme Court in Celestium Financial and the High Court in Shivsinh Ganpatsinh Solanki have clarified that a Section 138 complainant is a victim, the right to appeal is not circumscribed by the conditions of Section 378 CrPC (which requires leave to appeal).

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Instead, the victim has an absolute right to approach the court immediately superior in hierarchy—the Sessions Court—pursuant to the proviso of Section 372.

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The Court reasoned that the parliamentary intent of the proviso was to provide a superior, unconditional right to victims compared to the State or a general complainant.

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Consequently, because the Sessions Court is the proper appellate forum for a "victim," the High Court found it appropriate to transfer the matter rather than adjudicating it on merits.

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