Section 138 complainant is a victim entitled to appeal acquittal under Section 372 before Sessions Court.

The appellant, the original complainant, challenged the judgment dated 9 January 2014 of the 2nd Additional Chief Judicial Magistrate, Nadiad, acquitting the respondent-accused of an offence under Section 138 of the Negotiable Instruments Act, 1881 (“NI Act”).

The appeal was instituted under Section 378 of the Code of Criminal Procedure, 1973 (“CrPC”) / Section 419 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”).

During the hearing, the parties relied on the Supreme Court’s decision in Celestium Financial v. A. Gnanasekaran, which held that a complainant in a Section 138 NI Act case is also a “victim” and may appeal under the proviso to Section 372 CrPC before the immediately superior court, namely, the Sessions Court.

The State informed the Court that the correctness of that decision was pending consideration before a larger Bench of the Supreme Court, but the accused nevertheless sought transfer of the appeal to the Sessions Court.

Whether the original 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 / corresponding provision of the BNSS before the immediately superior court, i.e., the Sessions Court?

Whether the pending appeal filed before the High Court under Section 378 CrPC should be transferred to the concerned Sessions Court and treated as an appeal under the proviso to Section 372 CrPC / Section 413 BNSS?

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

The Court applied Section 138 of the NI Act, governing the offence of dishonour of cheque, together with the appellate provisions under Sections 372 and 378 CrPC and the corresponding provisions of the BNSS, including Section 413.

Relying principally on Celestium Financial v. A. Gnanasekaran, the Court stated that the complainant/payee or holder of the dishonoured cheque is the “victim” of the deemed offence under Section 138 and has an independent right to appeal against acquittal, conviction for a lesser offence, or inadequate compensation under the proviso to Section 372 CrPC, without the requirement of special leave under Section 378(4) CrPC.

The appeal lies before the court immediately superior to the trial court, namely, the Sessions Court.

The Court also relied on Shivsinh Ganpatsinh Solanki v. State of Gujarat and Thakar Hariprasad Dalsukhram v. State of Gujarat, 2026 SCC OnLine Guj 569, in directing transfer of such appeals to the competent Sessions Court.

Applying the principle in Celestium Financial, the High Court treated the complainant in a Section 138 NI Act prosecution as the person directly affected by the dishonour of the cheque and therefore as a “victim” for the purposes of the proviso to Section 372 CrPC.

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

Accordingly, the High Court held that the pending appeal should not proceed as a State/complainant appeal requiring leave under Section 378 CrPC, but should be recharacterised and dealt with as a victim’s appeal under the proviso to Section 372 CrPC / Section 413 BNSS.

Although the State pointed out that the legal issue was pending before a larger Bench of the Supreme Court, the High Court proceeded in accordance with the prevailing decisions and expressly refrained from examining the merits of the acquittal.

The Sessions Court was directed to register and treat the matter as an appeal under the proviso to Section 372 CrPC / Section 413 BNSS, issue notice to the parties, and endeavour to decide it expeditiously.

The Court clarified that it had not considered the merits of the acquittal.

The connected Criminal Miscellaneous Application No. 1 of 2014 for additional evidence was also transferred to and disposed of by the same direction.