Section 138 complainant may appeal acquittal as a victim under Section 372 before the Sessions Court.

The appellant, the original complainant, filed an appeal under Section 378 of the Code of Criminal Procedure, 1973 (“CrPC”) / Section 419 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), challenging the judgment dated 3 October 2019 by which the 2nd Additional Chief Judicial Magistrate, Vadodara acquitted the accused of an offence under Section 138 of the Negotiable Instruments Act, 1881 (“NI Act”).

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

The Court was also informed that the correctness of that legal position was pending consideration before the Supreme Court in Special Leave to Appeal (Crl.) No. 12350 of 2024, where reference to a larger Bench had been considered desirable.

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 / corresponding Section 413 BNSS before the Sessions Court.

Whether the appeal filed before the High Court under Section 378 CrPC / Section 419 BNSS should be transferred to the concerned Sessions Court for consideration as a victim’s appeal under the proviso to Section 372 CrPC / Section 413 BNSS.

The Court applied Section 138 of the NI Act, governing the offence of dishonour of cheque, along with Section 372 CrPC and its proviso, which confers on a victim a right of appeal against acquittal, conviction for a lesser offence, or inadequate compensation; under the BNSS, the corresponding provision is Section 413.

Section 378 CrPC / Section 419 BNSS concerns appeals against acquittal by the State or complainant, while the victim’s appeal lies to the court immediately superior to the trial court.

Relying on Celestium Financial v. A. Gnanasekaran, 2025 (3) GLH 747, the Court held that the complainant/payee or holder of the dishonoured cheque is also the victim of the deemed offence under Section 138 and may invoke the proviso to Section 372 without the limitations applicable to a complainant’s appeal under Section 378(4) CrPC.

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.

Since the appellant was the complainant/payee in a Section 138 NI Act proceeding, the principle in Celestium Financial treated him as the victim of the dishonoured cheque and entitled him to pursue an appeal under the proviso to Section 372 CrPC / Section 413 BNSS.

The immediately superior appellate forum to the Magistrate was the concerned Sessions Court.

Consequently, the High Court accepted the submission that the matter should be transferred rather than adjudicated on merits, particularly because the legal issue concerning the complainant’s appellate right was pending before a larger Bench of the Supreme Court.

The Court expressly refrained from examining the merits of the acquittal.

Upon transfer, it was to be treated and numbered as an appeal under the proviso to Section 372 CrPC / Section 413 BNSS, with notice issued to the parties.

The entire record, including the certified copy of the impugned judgment and the record and proceedings, was directed to be transmitted to the Sessions Court forthwith.

The Sessions Court was directed to endeavour to decide the matter expeditiously, and the High Court clarified that it had not examined the merits of the case.