GIRISHBHAI DAHYABHAI SHAHversusKAILASHBHAI TUKARAM CHIKHALIKAR

      R/CR.A/1012/2010                                ORDER DATED: 08/07/2026




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                         R/CRIMINAL APPEAL NO. 1012 of 2010

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                       GIRISHBHAI DAHYABHAI SHAH
                                  Versus
                 KAILASHBHAI TUKARAM CHIKHALIKAR & ANR.
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Appearance:
MS DHARA M SHAH(5546) for the Appellant(s) No. 1
VIKAS V NAIR(7444) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
MR SP HASURKAR(345) for the Opponent(s)/Respondent(s) No. 1
MS JIRGA JHAVERI ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 2
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     CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                                  Date : 08/07/2026

                                   ORAL ORDER


1.      The present appeal is filed by the appellant – original
complainant under Section 378 of the Criminal Procedure
Code, 1973 (hereinafter referred to as ‘the Code’ for short)
against the judgment and order dated 16.11.2009 passed by
the learned 6th              Addition Senior Civil Judge and Judicial
Magistrate First Class, Mahesana (hereinafter be referred to
as “the Trial Court), whereby the learned trial Court had
acquitted the respondent - accused.

2.      Heard learned counsel appearing for the respective
parties.

3.      This matter is required to be transferred in view of the
recent decision of the Hon’ble Supreme Court in the case of



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Celestium Financial Vs. A.Gnanasekaran Etc. reported in
2025 (3) GLH 747 wherein the Hon’ble Supreme Court has
held that the original complainant to be considered as a victim
of the offence under Section 138 of the Act and, therefore, the
complainant has right to file an appeal under Section 372 of
the Code before the lower Appellate Court i.e. immediate
Sessions Court before the District and the judgment dated
22.12.2025 rendered in Criminal Misc. Application No.12753
of 2019 with Criminal Misc. Application No. 12908 of 2019.

4.     Before entering into the merits of this case, this Court
deems it proper to refer to the decision rendered by this Court
in the case of Shivsinh Ganpatsinh Solanki Vs. State of
Gujarat being Criminal Miscellaneous Application Nos. 12753
of 2019 with 12908 of 2019 and the decision of the Hon'ble
Supreme Court in the case of Celestium Financial Vs. A.
Gyanasekaran (supra) wherein the Hon’ble Supreme Court
has observed and held that the complainant, in a complaint
under Section 138 of the N.I. Act, considered to be a victim,
has a specific right to file an appeal against the order of
acquittal under Section 372 of the Code / Section 413 of the
BNSS to the Court which is immediately superior in hierarchy
i.e. the Sessions Court.



5.     Learned Additional Public Prosecutor has pointed out
that the matter in the case of Celestium Financial Vs. A.
Gyanasekaran (supra) is now pending at large before the
Hon’ble Supreme Court in Special Leave to Appeal (Crl.) No.
12350/2024 wherein the Hon’ble Supreme Court has observed
that it is desirable that a larger Bench gives an authoritative

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     R/CR.A/1012/2010                                         ORDER DATED: 08/07/2026




pronouncement            on    this    issue        as   it     has     far-reaching
consequences. Therefore, the matter is to be decided subject
to the final outcome of the reference.

6.     In     the       case   of     Celestium           Financial           Vs.       A.
Gyanasekaran (supra), the Hon’ble Supreme Court has held
and observed in paras – 7.8, 7.9 and 7.12 as under:-

        “7.8 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. In the
        circumstances, the complainant can proceed as per
        the proviso to Section 372 of the CrPC and he may
        exercise such an option and he need not then elect
        to proceed under Section 378 of the CrPC.

        7.9 In this context, we wish to state that the proviso
        to Section 372 does not make a distinction between
        an accused who is charged of an offence under the
        penal law or a person who is deemed to have
        committed an offence under Section 138 of the Act.
        Symmetrical to a victim of an offence, a victim of a
        deemed offence under Section 138 of the Act also
        has the right to prefer an appeal against any order
        passed by the court acquitting the accused or
        convicting for a lesser offence or imposing an
        inadequate compensation. When viewed from the
        perspective of an offence under any penal law or a
        deemed offence under Section 138 of the Act, the
        right to file an appeal is not circumscribed by any
        condition as such, so long as the appeal can be
        premised in accordance with proviso to Section 372
        which is the right to file an appeal by a victim,
        provided the circumstances which enable such a
        victim to file an appeal are met. The complainant
        under Section 138 is the victim who must also have
        the right to prefer an appeal under the said
        provision. Merely because the proceeding under
        Section 138 of the Act commences with the filing of
        a complaint under Section 200 of the CrPC by a
        complainant, he does not cease to be a victim
        inasmuch as it is only a victim of a dishonour of


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R/CR.A/1012/2010                            ORDER DATED: 08/07/2026




   cheque who can file a complaint. Thus, under
   Section 138 of the Act both the complainant as well
   as the victim are one and the same person.

   7.12 The reasons for the above distinction are not
   far to see and can be elaborated as follows:

   Firstly, the victim of a crime must have an absolute
   right to prefer an appeal which cannot be
   circumscribed by any condition precedent. In the
   instant case, a victim under Section 138 of the Act,
   i.e., a payee or the holder of a cheque is a person
   who has suffered the impact of the offence
   committed by a person who is charged of the
   offence, namely, the accused, whose cheque has
   been dishonoured.

   Secondly, the right of a victim of a crime must be
   placed on par with the right of an accused who has
   suffered a conviction, who, as a matter of right can
   prefer an appeal under Section 374 of the CrPC. A
   person convicted of a crime has the right to prefer
   an appeal under Section 374 as a matter of right and
   not being subjected to any conditions. Similarly, a
   victim of a crime, whatever be the nature of the
   crime, unconditionally must have a right to prefer an
   appeal.

   Thirdly, it is for this reason that the Parliament
   thought it fit to insert the proviso to sub-section 372
   without mandating any condition precedent to be
   fulfilled by the victim of an offence, which
   expression also includes the legal representatives of
   a deceased victim who can prefer an appeal. On the
   contrary, as against an order of acquittal, the State,
   through the Public Prosecutor can prefer an appeal
   even if the complainant does not prefer such an
   appeal, though of course such an appeal is with the
   leave of the court. However, it is not always
   necessary for the State or a complainant to prefer an
   appeal. But when it comes to a victim’s right to
   prefer an appeal, the insistence on seeking special
   leave to appeal from the High Court under Section
   378(4) of the CrPC would be contrary to what has
   been intended by the Parliament by insertion of the
   proviso to Section 372 of the CrPC.



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        Fourthly, the Parliament has not amended Section
        378 to circumscribe the victim’s right to prefer an
        appeal just as it has with regard to a complainant or
        the State filing an appeal. On the other hand, the
        Parliament has inserted the proviso to Section 372
        so as to envisage a superior right for the victim of an
        offence to prefer an appeal on the grounds
        mentioned therein as compared to a complainant.

        Fifthly, the involvement of the State in respect of an
        offence under Section 138 of the Act is conspicuous
        by its absence. This is because the complaint filed
        under that provision is in the nature of a private
        complaint as per Section 200 of the CrPC and
        Section 143 of the Act by an express intention
        incorporates the provisions of the CrPC in the
        matter of trial of such a deemed offence tried as a
        criminal offence. Therefore, the complainant, who is
        the victim of a dishonour of cheque must be
        construed to be victim in terms of the proviso to
        Section 372 read with the definition of victim under
        Section 2(wa) of the CrPC.”


7.     In view of the said submissions and the decision of the
Hon’ble Supreme Court in the case of Celestium Financial
Vs. A. Gyanasekaran (supra) and decision of this Court in
the case of Thakar Hariprasad Dalsukhram Vs. State of
Gujarat and another reported in 2026 SCC OnLine Guj
569, this appeal is disposed of with a direction to the Registry
to transfer the appeal to the concerned Sessions Court. After
it is transferred to the concerned Sessions Court, it has to be
treated as an Appeal under the proviso under Section 372 of
the Code / Section 413 of BNSS and numbered accordingly
and issue notice to the parties. The Registry is directed to
transfer the entire record of the case, including the certified
copies of the order impugned and record & proceedings, if
lying with this Court, to the concerned lower Appellate Court,
forthwith.


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       R/CR.A/1012/2010                                                               ORDER DATED: 08/07/2026




8.       Considering that the matter has been pending for
considerable time, the learned lower Appellate Court is
required to make endeavour to dispose of the matter as
expeditiously as possible. It is clarified that this Court has not
gone into the merits of the matter at this stage.



                                                                        (HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
 Original copy of this order has been signed by the Hon'ble Judge.
 Digitally signed by: SURESHKUMAR MOTIBHAI SOLANKI(HC00208), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 08/07/2026 18:16:02




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