The Gujarat High Court affirmed that a complainant in a cheque-dishonour case is the victim under the Negotiable Instruments Act and may invoke the proviso to Section 372 of the CrPC to appeal an acquittal, ordering the appeal to be transferred to the Sessions Court.
Background & Facts
The Dispute
The appellant, NITINKUMAR DALSUKHRAM OZA, filed a criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 alleging that the cheque issued by the respondents, VAHIDBHAI YAKUBBHAI SHAIKH & ANR, was dishonoured. The trial court, a Chief Judicial Magistrate in Himmatnagar, acquitted the respondents on 30.12.2009.
Key Facts
- The complaint was originally lodged under Section 200 of the CrPC.
- The trial court’s order of acquittal was dated 30.12.2009.
- The appellant appealed the acquittal under Section 378 of the CrPC.
- The Supreme Court, in Celestium Financial Ltd. v. A. Gnanasekaran (2025 (3) GLH 747), held that the complainant is the victim and may prefer an appeal under the proviso to Section 372 CrPC.
- The Supreme Court’s decision is pending final pronouncement in Special Leave Petition (Criminal) No. 12350/2024.
- The Gujarat High Court cited its own earlier decision in Thakar Hariprasad Dalsukhram v. State of Gujarat (2026 SCC OnLine Guj 569).
Procedural History
- 30.12.2009: Trial Court acquitted the respondents.
- Date of filing of appeal under Section 378: not specified in the judgment.
- 2025: Supreme Court judgment in Celestium Financial Ltd. v. A. Gnanasekaran clarified victim-appeal right.
- 24.08.2026: Gujarat High Court delivered the present judgment (Neutral citation: 2026:GUJHC:54211).
- Pending: SLP No. 12350/2024 before the Supreme Court.
Relief Sought
The appellant sought to set aside the acquittal and obtain a conviction of the respondents under Section 138 NI Act. The High Court, however, disposed of the appeal by directing its transfer to the Sessions Court as an appeal under the proviso to Section 372 CrPC/Section 413 BNSS.
The Legal Issue
The central question was whether a complainant/victim in a cheque-dishonour case under Section 138 NI Act can file an appeal against an acquittal under the proviso to Section 372 of the CrPC, bypassing the procedural route of Section 378 CrPC.
Arguments Presented
For the Appellant
- Relied on the Supreme Court’s pronouncement in Celestium Financial Ltd. v. A. Gnanasekaran that the complainant is the victim and enjoys the right to appeal under Section 372 CrPC.
- Submitted that the proviso to Section 372 imposes no condition precedent and therefore the appeal should be entertained as a victim-appeal.
For the Respondent
- Contended that the appeal should proceed under Section 378 CrPC, the ordinary route for appeals against acquittals.
- Submitted that the matter should remain before the High Court until the pending Supreme Court SLP is decided.
The Court's Analysis
The Court began by reiterating the Supreme Court’s observations in Celestium Financial Ltd. v. A. Gnanasekaran, particularly paras 7.8-7.12, which articulate a clear doctrinal line: the complainant in a Section 138 case is the victim of a dishonoured cheque and therefore possesses the same unconditional right to appeal as an accused does under Section 374 CrPC. The Court emphasized that the proviso to Section 372 was inserted by Parliament precisely to avoid any condition precedent for a victim-appeal, thereby placing the victim on a parity footing with the accused.
"In the case of an offence alleged against an accused under Section 138 of the Act, we are of the view that the complainant is indeed the victim owing to the alleged dishonour of a cheque."
The Court distinguished the procedural route of Section 378 CrPC, noting that it is intended for appeals by the State or the accused, not for victims of private complaints. It further observed that the Supreme Court’s pending SLP does not preclude the High Court from applying the settled principle that a victim may directly invoke Section 372. Consequently, the appeal was to be treated as an appeal under the proviso to Section 372 CrPC (or Section 413 of the BNSS) and transferred to the Sessions Court for proper adjudication.
The judgment also directed the Registry to forward the entire case record, including certified copies of the impugned order, to the concerned Sessions Court forthwith and urged the lower appellate court to dispose of the matter expeditiously, given the considerable delay already incurred.
The Verdict
The High Court disposed of the appeal by directing that it be transferred to the appropriate Sessions Court and be dealt with as an appeal under the proviso to Section 372 CrPC/Section 413 BNSS. The Registry was ordered to transmit the complete record immediately, and the Sessions Court was instructed to issue notice to the parties and dispose of the appeal as swiftly as possible. No substantive merits of the original cheque-dishonour claim were decided at this stage.
What This Means For Similar Cases
Victim-Appeal Right Is Independent of Section 378
- Practitioners must advise complainants under Section 138 NI Act that they can invoke the proviso to Section 372 CrPC to appeal an acquittal, without first filing under Section 378.
- The right is unconditional; no additional criteria need to be satisfied beyond the victim status.
Procedural Transfer to Sessions Court
- Once the victim-appeal right is invoked, the matter should be transferred to the Sessions Court, the immediate superior in hierarchy, for trial as an appeal under Section 372/413.
- The High Court may order such transfer even if a pending Supreme Court reference exists, provided the principle is settled.
Expedite Disposal
- Courts are expected to handle these transferred appeals promptly, recognizing the delay inherent in the appellate process.
- Counsel should file a request for speedy disposal under the court’s inherent powers.
Checklist for Practitioners
- Verify victim status (payee/holder of the dishonoured cheque).
- Cite Celestium Financial Ltd. v. A. Gnanasekaran and the relevant paras of the Supreme Court judgment.
- File the appeal under the proviso to Section 372 CrPC (or Section 413 BNSS) directly.
- Anticipate a transfer order to the Sessions Court and prepare for jurisdictional compliance.
