PARESHKUMAR ISHVARLAL CHOKHAWALAversusSTATE OF GUJARAT

       R/CR.A/15/2019                           ORDER DATED: 18/06/2026




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 15 of 2019

==========================================================
                   PARESHKUMAR ISHVARLAL CHOKHAWALA
                                 Versus
                        STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR NIRAV K PADHIYAR(5678) for the Appellant(s) No. 1
MS JYOTI BHATT ADDITIONALPUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
==========================================================

     CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                            Date : 18/06/2026

                                ORDER


1.      The present appeal is filed by the appellant – original
complainant under Section 378(4) of the Criminal Procedure
Code, 1973 (hereinafter referred to as ‘the Code’ for short)
against the judgment and order dated 17.11.2018 passed by
the learned Judicial Magistrate First Class, Deesa (hereinafter
be referred to as “the Trial Court), whereby the learned trial
Court had acquitted the respondent - accused for the offence
under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as the ‘NI Act’ for short).

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

                                Page 1 of 6
     R/CR.A/15/2019                                       ORDER DATED: 18/06/2026




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.



6.    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

                                  Page 2 of 6
     R/CR.A/15/2019                             ORDER DATED: 18/06/2026




consequences. Therefore, the matter is to be decided subject
to the final outcome of the reference.

7.    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
       cheque who can file a complaint. Thus, under


                                  Page 3 of 6
R/CR.A/15/2019                            ORDER DATED: 18/06/2026




  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.

  Fourthly, the Parliament has not amended Section


                          Page 4 of 6
     R/CR.A/15/2019                            ORDER DATED: 18/06/2026




       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.”


8.    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.



                               Page 5 of 6
        R/CR.A/15/2019                                                               ORDER DATED: 18/06/2026




9.        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 18/06/2026 18:05:46




                                                       Page 6 of 6