Complainant in Section 138 NI Act proceedings is a "victim" entitled to appeal acquittal before Sessions Court.

The appellant (original complainant) filed a criminal appeal under Section 378 of the CrPC (and alternatively Section 419 of the BNSS) challenging the judgment dated January 12, 2023, passed by the 17th Additional Senior Civil Judge and ACJM, Surat.

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

During the pendency of the appeal, the parties addressed the court on the correct forum for filing such an appeal in light of recent judicial shifts regarding the definition of a "victim" in cheque bounce cases.

1. Whether a complainant in a proceeding under Section 138 of the NI Act is considered a "victim" and thereby entitled to file an appeal against acquittal in the Sessions Court under the proviso to Section 372 of the CrPC (now Section 413 of the BNSS) rather than before the High Court.

The Court primarily relied on the Supreme Court decision in Celestium Financial v. A. Gnanasekaran (2025 (3) GLH 747), which established that a complainant under Section 138 of the NI Act is a "victim" as defined under Section 2(wa) of the CrPC because they have suffered the impact of the dishonored cheque.

Consequently, such a victim has a statutory right to prefer an appeal against acquittal under the proviso to Section 372 of the CrPC (Section 413 BNSS) to the Court immediately superior in hierarchy (the Sessions Court) without the need for seeking special leave to appeal under Section 378(4).

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

The Court reasoned that the complainant and the victim are the same person in Section 138 proceedings, as only the payee or holder in due course can file the complaint.

It observed that the right of a victim to appeal under the proviso to Section 372 is an absolute, unconditional statutory right, placed on par with the accused’s right to appeal a conviction under Section 374.

The court determined that requiring a victim (complainant) to seek "special leave" under Section 378(4) would contradict the legislative intent of inserting the proviso to Section 372.

Following the precedent in Shivsinh Ganpatsinh Solanki v. State of Gujarat, the court found that the High Court was not the appropriate initial forum for this appeal given the hierarchy of courts.

It disposed of the appeal by directing the Registry to transfer the entire case record and proceedings to the concerned Sessions Court at Surat. The Sessions Court is directed to treat the matter as an appeal under the proviso to Section 372 of the CrPC (or Section 413 BNSS), issue fresh notices to parties, and endeavor to resolve the matter expeditiously without being influenced by the merits, subject to the final outcome of the reference pending before the Supreme Court.