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

The appellant (original complainant) filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881

By a judgment and order dated 17.09.2011, the learned 3rd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Surendranagar, acquitted the respondent-accused

The appellant initially preferred this appeal before the High Court of Gujarat under Section 378 of the CrPC/Section 419 of the BNSS

During the pendency of the appeal, the parties cited recent judicial developments regarding the appropriate forum for appeals against acquittals in Section 138 cases

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 before the Sessions Court under the proviso to Section 372 of the CrPC

2. Whether the present appeal, pending before the High Court, should be transferred to the concerned Sessions Court in light of the Supreme Court's ruling in Celestium Financial v. A. Gnanasekaran

The Court applied the proviso to Section 372 of the Criminal Procedure Code, 1973 (aligned with Section 413 of the Bharatiya Nagrik Suraksha Sanhita, 2023), which grants a victim the right to prefer an appeal against an order of acquittal to the court to which an appeal ordinarily lies against the order of conviction

It relied on the precedent set by the Supreme Court 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" and has an absolute right to appeal to the Sessions Court without seeking special leave under Section 378(4)

The Court also referenced Shivsinh Ganpatsinh Solanki v. State of Gujarat

The High Court observed that under the Celestium Financial doctrine, there is no distinction between a victim of a penal offence and a victim of a "deemed offence" under Section 138 of the NI Act

Since the complainant is the party who suffered the financial impact of the dishonored cheque, they are synonymous with the "victim" defined under Section 2(wa) of the CrPC

The Court reasoned that forcing a victim to seek special leave from the High Court under Section 378(4) would contradict the legislative intent of the proviso to Section 372, which aims to provide an unconditional right of appeal

Consequently, because the Sessions Court is the immediate superior court in the hierarchy to the Magistrate who passed the acquittal order, the appeal must be heard by the Sessions Court

The Court held that the appeal shall be treated as a victim’s appeal under the proviso to Section 372 of the CrPC (Section 413 of BNSS)

The Sessions Court was directed to issue notice to the parties and endeavor to dispose of the matter expeditiously, subject to the final outcome of the reference currently pending before a larger bench of the Supreme Court in Special Leave to Appeal (Crl.) No. 12350/2024