CHANDUBHAI GOBARBHAI ASODARIAversusSTATE OF GUJARAT

     R/CR.A/1446/2019                               ORDER DATED: 07/08/2026




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1446 of 2019
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                        CHANDUBHAI GOBARBHAI ASODARIA
                                    Versus
                           STATE OF GUJARAT & ANR.
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Appearance:
MR APURVA R KAPADIA(5012) for the Appellant(s) No. 1
MR VIRAT G POPAT(3710) for the Opponent(s)/Respondent(s) No. 2
MS JIRGA JHAVERI ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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  CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                                Date : 07/08/2026

                                    ORDER


1.     The present appeal is           led by the appellant against the
judgment and order dated 20.03.2019 passed by the learned
3rd Additional Chief Judicial Magistrate, Surat (hereinafter be
referred to as “the Trial Court”), in Criminal Case No. 25899
of 2014 whereby the 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
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 o2ence under Section 138 of the Act and, therefore, the
complainant has right to           le an appeal under Section 372 of


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




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     R/CR.A/1446/2019                               ORDER DATED: 07/08/2026




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 o ence 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 o ence under the penal law or a person who is
        deemed to have committed an o ence under Section 138 of the
        Act. Symmetrical to a victim of an o ence, a victim of a deemed
        o ence 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 o ence or imposing an
        inadequate compensation. When viewed from the perspective of
        an o ence under any penal law or a deemed o ence under
        Section 138 of the Act, the right to *le 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 *le an appeal by a victim, provided the circumstances
        which enable such a victim to *le 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 *ling 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 cheque who can *le 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
        su ered the impact of the o ence committed by a person who is
        charged of the o ence, namely, the accused, whose cheque has
        been dishonoured.

        Secondly, the right of a victim of a crime must be placed on par



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     R/CR.A/1446/2019                              ORDER DATED: 07/08/2026




        with the right of an accused who has su ered 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 *t to
        insert the proviso to sub-section 372 without mandating any
        condition precedent to be ful*lled by the victim of an o ence,
        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.

        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 *ling 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 o ence
        to prefer an appeal on the grounds mentioned therein as
        compared to a complainant.

        Fifthly, the involvement of the State in respect of an o ence
        under Section 138 of the Act is conspicuous by its absence. This is
        because the complaint *led 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 o ence tried
        as a criminal o ence. 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 de*nition 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


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       R/CR.A/1446/2019                                                               ORDER DATED: 07/08/2026




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 certi ed
copies of the order impugned and record & proceedings, if
lying with this Court, to the concerned lower Appellate Court,
forthwith.

8.        Considering that the matter has been pending for
considerable time, the lower Appellate Court is required to
make endeavour to dispose of the matter as expeditiously as
possible. It is clari ed 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 07/08/2026 17:58:02




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