Gujarat High Court directs transfer of cheque-bounce acquittal appeal to Sessions Court after Supreme Court ruling recognising complainants as victims with a direct appeal right

The appellant, the original complainant, filed an appeal under Section 378 of the Code of Criminal Procedure, 1973 (“CrPC”) against the judgment dated 30 December 2009, by which the Chief Judicial Magistrate, Himmatnagar acquitted the respondent-accused of the offence under Section 138 of the Negotiable Instruments Act, 1881 (“NI Act”).

During the pendency of the appeal, the Gujarat High Court considered the effect of the Supreme Court’s decision in Celestium Financial v. A. Gnanasekaran, which held that a complainant in a Section 138 NI Act proceeding is a “victim” entitled to appeal under the proviso to Section 372 CrPC before the immediately superior court, namely, the Sessions Court.

The respondent consented to remand or transfer of the matter to the concerned Sessions Court.

The Additional Public Prosecutor pointed out that the Celestium Financial decision was pending reconsideration before a larger Bench in Special Leave to Appeal (Crl.) No. 12350 of 2024.

1. Whether a complainant in a prosecution under Section 138 of the NI Act is a “victim” entitled to prefer an appeal against acquittal under the proviso to Section 372 CrPC, without pursuing an appeal under Section 378 CrPC before the High Court.

2. Whether the pending appeal filed under Section 378 CrPC should be transferred to the concerned Sessions Court for being treated and numbered as an appeal under the proviso to Section 372 CrPC, or Section 413 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”).

3. Whether the High Court should examine the merits of the acquittal at that stage.

Section 378 CrPC governs appeals against acquittal, including appeals by a complainant subject to the statutory requirements applicable to such appeals.

The proviso to Section 372 CrPC confers an independent right of appeal upon a victim against acquittal, conviction for a lesser offence, or inadequate compensation; the corresponding provision under the BNSS is Section 413.

Section 138 of the NI Act creates a deemed criminal offence for cheque dishonour, and the complainant/payee or holder of the cheque is treated as the victim of that offence.

Relying on Celestium Financial v. A. Gnanasekaran, 2025 (3) GLH 747, the Court held that the Section 138 complainant and victim are ordinarily the same person and may appeal under the proviso to Section 372 CrPC without seeking special leave under Section 378(4) CrPC; the competent appellate forum is the court immediately superior to the trial court, ordinarily the Sessions Court.

The Court also relied on Shivsinh Ganpatsinh Solanki v. State of Gujarat, Criminal Misc. Application Nos.12753 and 12908 of 2019, and Thakar Hariprasad Dalsukhram v. State of Gujarat, 2026 SCC OnLine Guj 569.

Applying the principle in Celestium Financial, the High Court treated the original complainant in the Section 138 NI Act proceeding as the victim of the alleged cheque dishonour.

Consequently, the complainant’s challenge to the acquittal was required to be pursued as a victim’s appeal under the proviso to Section 372 CrPC before the Sessions Court, rather than as a Section 378 appeal before the High Court.

Although the State informed the Court that the issue was pending before a larger Bench, the High Court followed the prevailing legal position and did not decide the merits of the acquittal.

It therefore directed transfer of the pending appeal and the complete record to the competent Sessions Court.

The Sessions Court was directed to treat and number the matter as an appeal under the proviso to Section 372 CrPC or Section 413 BNSS and issue notice to the parties.

The lower appellate court was requested to make every effort to dispose of the matter expeditiously.

The High Court expressly clarified that it had not examined the merits of the acquittal.