The Gujarat High Court held that a complainant under Section 138 of the Negotiable Instruments Act, 1881, being the victim of a dishonoured cheque, possesses an unconditional right to appeal an order of acquittal under the proviso to Section 372 of the Code of Criminal Procedure, 1973. Consequently, an appeal filed under Section 378(4) CrPC is not maintainable and must be transferred to the Sessions Court for disposal as an appeal under the said proviso.
Background & Facts
The Dispute
The appellant, Hasmukhbhai Jivrajbhai Bhensjaliya, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the respondent for dishonour of a cheque. The trial court acquitted the accused. Aggrieved by the acquittal, the appellant preferred a criminal appeal under Section 378(4) of the CrPC before the High Court of Gujarat.
Key Facts
- The complaint was filed under Section 138 NI Act alleging dishonour of a cheque.
- The Judicial Magistrate First Class, Limbdi delivered judgment of acquittal on 11.11.2020.
- The appellant filed the present appeal (R/CR.A/649/2021) under Section 378(4) of the CrPC in 2021.
- The appeal challenges the acquittal and seeks to have the matter treated as an appeal under the proviso to Section 372 CrPC.
- The judgment under analysis was delivered on 12.10.2026.
- The Court referred to the Supreme Court decision in Celestium Financial Vs. A. Gyanasekaran reported in 2025 (3) GLH 747.
- The Court also relied on its earlier decision in Shivsinh Ganpatsinh Solanki Vs. State of Gujarat (Criminal Miscellaneous Application Nos. 12753 of 2019 with 12908 of 2019).
- Additionally, the Court noted the Gujarat High Court decision in Thakar Hariprasad Dalsukhram Vs. State of Gujarat and another reported in 2026 SCC OnLine Guj 569.
Procedural History
- 11.11.2020: Trial Court acquitted the accused in the complaint under Section 138 NI Act.
- 2021: Appeal filed as R/CR.A/649/2021 under Section 378(4) CrPC before the High Court of Gujarat.
- 12.10.2026: High Court delivered judgment holding the appeal under Section 378(4) not maintainable and directing transfer of the matter to the Sessions Court to be treated as an appeal under the proviso to Section 372 CrPC / Section 413 BNSS.
Relief Sought
The appellant sought to set aside the acquittal and have the appeal heard under the proviso to Section 372 CrPC, alternatively praying for transfer of the matter to the Sessions Court for disposal as such an appeal.
The Legal Issue
The central question was whether a complainant under Section 138 of the Negotiable Instruments Act, 1881, who is deemed a victim of the offence, may prefer an appeal against an order of acquittal under Section 378(4) of the Code of Criminal Procedure, 1973, or whether the remedy lies exclusively under the proviso to Section 372 CrPC.
Arguments Presented
For the Appellant
The appellant contended that, following the Supreme Court's decision in Celestium Financial Vs. A. Gyanasekaran, the complainant under Section 138 NI Act is a victim and thus entitled to an unconditional right to appeal under the proviso to Section 372 CrPC. He relied on this Court's earlier ruling in Shivsinh Ganpatsinh Solanki Vs. State of Gujarat to argue that the appeal under Section 378(4) was misconceived and that the matter should be remitted to the Sessions Court for disposal as an appeal under the said proviso.
For the Respondent
The respondent, represented by the Additional Public Prosecutor, submitted that the appeal under Section 378(4) is not maintainable because the complainant's right to appeal is governed by the proviso to Section 372 CrPC. He urged the Court to transfer the appeal to the Sessions Court to be treated as an appeal under the proviso, citing the Supreme Court's observation in Celestium Financial that the matter was pending before it and that a larger Bench pronouncement was desirable.
The Court's Analysis
The Court began by noting that the complainant under Section 138 NI Act is the victim of the alleged offence, as held by the Supreme Court in Celestium Financial Vs. A. Gyanasekaran. It observed that the proviso to Section 372 CrPC was introduced to give the victim of an offence a superior, unconditional right to appeal, distinct from the limited right of a complainant or the State. The Court quoted:
"The complainant under Section 138 of the Act is the victim who must also have the right to prefer an appeal under the said provision."
It emphasized that the victim's right to appeal cannot be circumscribed by any condition precedent, placing it on par with the right of a convicted accused to appeal under Section 374 CrPC. The Parliament's insertion of the proviso, without mandating any condition, reflects the intention to elevate the victim's appeal right. The Court further noted that the State's involvement in a Section 138 NI Act case is conspicuous by its absence, as the complaint is a private complaint under Section 200 CrPC and Section 143 of the Act. Consequently, the remedy available to the victim is the appeal under the proviso to Section 372 CrPC, not an appeal under Section 378(4). The Court also referred to its own earlier decision in Shivsinh Ganpatsinh Solanki Vs. State of Gujarat and the Gujarat High Court decision in Thakar Hariprasad Dalsukhram Vs. State of Gujarat and another, which consistently upheld the victim's right to appeal under the proviso. Having concluded that the appeal under Section 378(4) CrPC is not maintainable, the Court held that it would not go into the merits of the matter at that stage.
The Verdict
The appellant succeeded in part. The Court held that the appeal filed under Section 378(4) of the CrPC is not maintainable. It directed the Registry to transfer the entire record of the case, including certified copies of the impugned order and proceedings, to the concerned Sessions Court to be treated as an appeal under the proviso to Section 372 CrPC / Section 413 BNSS, numbered accordingly, and to issue notice to the parties. No merits were examined, and the matter is to be disposed of expeditiously by the lower appellate court.
What This Means For Similar Cases
Victim Status Trumps Complainant Status in NI Act Cases
Practitioners must recognise that a complainant under Section 138 NI Act is legally a victim. Consequently, the right to appeal an acquittal is governed by the proviso to Section 372 CrPC, which provides an unconditional remedy, unlike the limited remedy under Section 378(4).
Proviso to Section 372 CrPC Provides Exclusive Remedy for Victim Appeals
The appeal against an acquittal in a Section 138 NI Act case must be filed under the proviso to Section 372 CrPC. Filing under Section 378(4) is procedurally incorrect and will be rejected. This aligns with the Supreme Court's interpretation that the victim's right to appeal is superior and unconditional.
Procedural Imperative: Transfer to Sessions Court
Once an appeal is filed under the proviso, it must be transferred to the Sessions Court, which will treat it as a victim's appeal and proceed accordingly. The Registry is duty-bound to forward the record forthwith, and the lower appellate court is required to dispose of the matter expeditiously.
- Verify the complainant's status as victim under Section 138 NI Act before filing appeal.
- Draft the appeal memo invoking the proviso to Section 372 CrPC / Section 413 BNSS.
- Ensure the record is transferred to the Sessions Court without delay.
- Avoid reliance on Section 378(4) for such appeals to prevent procedural setbacks.
