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

The appellant (original complainant) filed a criminal appeal challenging the judgment and order dated 20.09.2012 passed by the learned Metropolitan Magistrate, Court No. 29, Ahmedabad. The Trial Court had acquitted the respondent (accused) of the offence under Section 138 of the Negotiable Instruments Act, 1881

The appeal was originally filed in the High Court under Section 378 of the CrPC/Section 419 of the BNSS. However, during the pendency of the appeal, a significant shift in legal precedent occurred regarding the forum of appeal for complainants in cheque bounce cases

1. Whether an original complainant in a complaint filed under Section 138 of the Negotiable Instruments Act is to be treated as a "victim" under Section 2(wa) of the CrPC

2. Whether the complainant’s appeal against acquittal in a Section 138 NI Act case lies before the Sessions Court under the proviso to Section 372 of the CrPC or before the High Court under Section 378(4)

The court primarily applied the proviso to Section 372 of the Criminal Procedure Code (now Section 413 of the BNSS) and Section 2(wa) of the CrPC

It relied heavily on the precedent established by the Hon’ble Supreme Court in Celestium Financial Vs. A. Gnanasekaran Etc. (2025 (3) GLH 747), which held that a complainant in a Section 138 proceeding is indeed a "victim" who has suffered impact due to the dishonour of a cheque

The court also referenced Shivsinh Ganpatsinh Solanki Vs. State of Gujarat regarding the procedural right of a victim to file an appeal against acquittal in the court immediately superior in hierarchy, i.e., the Sessions Court, without the requirement of seeking special leave under Section 378(4)

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

The court reasoned that since the complainant and the victim are the same person in cheque bounce cases, the absolute right to appeal granted to victims under the proviso to Section 372 of the CrPC must prevail over the conditional right (special leave) under Section 378(4)

Consequently, because the Sessions Court is the court immediately superior to the Metropolitan Magistrate, the High Court lacked the appropriate jurisdiction to hear this appeal as a court of first instance. The court noted that while the issue is currently referred to a larger bench of the Supreme Court in SLP (Crl.) No. 12350/2024, the prevailing law necessitates transferring such matters to the Sessions Court

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 was directed to treat the matter as an appeal under the proviso to Section 372 and to dispose of it as expeditiously as possible, subject to the final outcome of the reference pending before the Supreme Court