Complainant under Section 138 of NI Act is a 'Victim' entitled to file appeal against acquittal before Sessions Court.

In brief

The question

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

The court held

The High Court disposed of the appeal by directing the Registry to transfer the entire case record and proceedings to the concerned Sessions Court.

It also directed

The Sessions Court was 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 to the parties, and endeavor to dispose of the matter expeditiously.

The Court clarified it did not adjudicate on the merits of the underlying Section 138 complaint.

01Facts

The appellant (original complainant) filed a criminal appeal under Section 378 of the CrPC challenging a judgment dated 14.07.2011 passed by the 3rd Additional Senior Civil Judge, Himatnagar, which acquitted the respondent-accused of charges under Section 138 of the Negotiable Instruments Act, 1881.

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During the pendency of the appeal, the appellant passed away on 18.12.2013, and his legal heirs were not brought on record for over 12 years.

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Simultaneously, a change in legal precedent occurred regarding the forum for filing appeals in Section 138 acquittal cases.

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02Issues

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

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ii.2. Whether the pending appeal before the High Court should be transferred to the concerned Sessions Court in light of recent judicial pronouncements.

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03Law Applied

The Court primarily applied the proviso to Section 372 of the Criminal Procedure Code, 1973 (corresponding to Section 413 of the Bharatiya Nagrik Suraksha Sanhita, 2023) which grants a "victim" the right to appeal against acquittal.

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It relied on the precedent set by the Hon'ble 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 a "victim" as defined under Section 2(wa) of the CrPC.

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The court also noted the High Court's own precedent in Thakar Hariprasad Dalsukhram v. State of Gujarat [2026 SCC OnLine Guj 569] regarding the transfer of such 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 200 Section 374 Section 2

Bharatiya Nagarik Suraksha Sanhita, 2023 Section 419 Section 413

Negotiable Instruments Act, 1881 Section 138 Section 143

04Reasoning

The Court reasoned that since the Supreme Court has categorized a complainant in a cheque dishonor case as a victim, they possess an "absolute right" to prefer an appeal that is not circumscribed by the requirement of seeking special leave under Section 378(4).

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The Court observed that the right of a victim must be placed on par with the right of an accused to appeal a conviction.

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Consequently, the proper forum for an appeal against an acquittal by a Magistrate is the court immediately superior in hierarchy—the Sessions Court—rather than the High Court.

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Given that the matter was pending for a long duration and the original appellant had deceased, the Court found it appropriate to transfer the proceedings to the lower appellate court to allow the legal heirs to be joined and the matter to be heard in the correct forum.

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