Gujarat HC transfers cheque-bounce acquittal appeal to Sessions Court, treating complainant as a victim entitled to appeal under Section 372 CrPC

The appellant, the original complainant in a prosecution under Section 138 of the Negotiable Instruments Act, 1881, challenged the judgment dated 25 November 2009 by which the Chief Judicial Magistrate, Himmatnagar acquitted the accused.

The appeal had been filed under Section 378 of the Code of Criminal Procedure, 1973, alternatively invoking the corresponding provisions of the Bharatiya Nagarik Suraksha Sanhita, 2023.

During hearing, the parties brought to the Court’s attention the Supreme Court’s decision in Celestium Financial v. A. Gnanasekaran, holding that a complainant in a Section 138 prosecution is also a “victim” and may appeal under the proviso to Section 372 CrPC before the immediately superior court, namely, the Sessions Court.

It was also noted that the Supreme Court had referred the issue for authoritative consideration by a larger Bench in Special Leave to Appeal (Crl.) No. 12350 of 2024.

Whether the original complainant in a prosecution under Section 138 of the Negotiable Instruments Act is a “victim” entitled to appeal against acquittal under the proviso to Section 372 CrPC, or the corresponding provision of the BNSS, without proceeding under Section 378 CrPC.

Whether such an appeal against acquittal must be presented before the immediately superior appellate court, namely, the concerned Sessions Court, requiring transfer of the pending High Court appeal.

Whether the pending reference before the Supreme Court affected the manner in which the appeal should be transferred and heard.

The Court applied Section 138 of the Negotiable Instruments Act, 1881, governing the offence of cheque dishonour, read with Section 200 CrPC and Section 143 of the NI Act concerning the institution and trial of such private complaints.

Under Section 2(wa) CrPC, a complainant/payee or holder of a dishonoured cheque may be treated as the victim of the deemed offence under Section 138.

The proviso to Section 372 CrPC confers upon a victim an independent right to appeal against acquittal, conviction for a lesser offence, or inadequate compensation, without the requirement of obtaining special leave under Section 378(4) CrPC.

The corresponding appellate provisions of the BNSS were also referred to, including Sections 413 and 419 as mentioned in the judgment.

Relying on Celestium Financial v. A. Gnanasekaran, 2025 (3) GLH 747, and Shivsinh Ganpatsinh Solanki v. State of Gujarat, the Court held that the competent forum for such a victim’s appeal is the court immediately superior to the trial court—ordinarily, the Sessions Court.

The Court did not examine the merits of the acquittal.

It proceeded on the legal position stated in Celestium Financial, under which the complainant in a Section 138 case is simultaneously the person who suffered the cheque dishonour and the victim of the deemed offence.

Consequently, the complainant’s remedy lies under the victim’s appellate right in the proviso to Section 372 CrPC, rather than exclusively under Section 378 CrPC.

Since the trial court was the Chief Judicial Magistrate, the immediately superior appellate forum was the concerned Sessions Court.

Although the Supreme Court’s larger-Bench reference remained pending, the High Court directed that the appeal be transferred and treated as a victim’s appeal, subject to the final outcome of that reference.

The Sessions Court was directed to register and number the matter as an appeal under the proviso to Section 372 CrPC or the corresponding BNSS provision, issue notice to the parties, and hear the matter in accordance with law.

In view of the case’s considerable pendency, the Sessions Court was requested to decide it as expeditiously as possible.