Section 138 Complainants May Appeal Acquittals as Victims Before the Sessions Court Under Section 372

The original complainant filed this appeal under Section 378 of the Code of Criminal Procedure, 1973 (“CrPC”), challenging the Trial Court’s judgment dated 24 December 2018 acquitting the accused.

Before considering the merits, the High Court considered the effect of Celestium Financial v. A. Gyanasekaran, which held that a complainant under Section 138 of the Negotiable Instruments Act, 1881 (“NI Act”) is a victim entitled to appeal against acquittal under the proviso to Section 372 CrPC before the immediately superior court, namely the Sessions Court.

The Court was also informed that the issue was pending consideration by a larger Bench of the Supreme Court.

Whether an original complainant’s appeal against acquittal in a Section 138 NI Act case should be treated as a victim’s appeal under the proviso to Section 372 CrPC and heard by the Sessions Court.

Whether the High Court should consider the merits of the appeal before transferring it to the Sessions Court.

The proviso to Section 372 CrPC gives a victim a right to appeal against acquittal to the court to which an appeal ordinarily lies from the relevant court’s order; under Celestium Financial v. A. Gyanasekaran, a complainant in a Section 138 NI Act case is also the victim of the alleged cheque dishonour and may appeal under that proviso before the immediately superior court, identified as the Sessions Court.

The judgment also refers to Section 378 CrPC, Section 413 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (“BNSS”), and the Gujarat High Court decisions in Shivsinh Ganpatsinh Solanki v. State of Gujarat and Thakar Hariprasad Dalsukhram v. State of Gujarat and Another.

The Court noted that the relevant issue was pending before a larger Bench of the Supreme Court and directed that the matter proceed subject to the outcome of that reference.

Applying Celestium Financial, the Court treated the complainant in a Section 138 NI Act case as a victim entitled to appeal under the proviso to Section 372 CrPC.

It therefore concluded that the appeal belonged before the Sessions Court, rather than being considered by the High Court under Section 378 CrPC.

Because the issue was pending before a larger Bench, the transfer was directed subject to the final outcome of that reference.

The Court did not assess the evidence or the merits of the acquittal.

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

The High Court expressly left the merits open.