HARENDRABHAI BHOGILAL SHAHversusSTATE OF GUJARAT

       R/CR.A/1902/2021                              ORDER DATED: 04/05/2026




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1902 of 2021
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                          HARENDRABHAI BHOGILAL SHAH
                                     Versus
                            STATE OF GUJARAT & ANR.
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Appearance:
MR AMRISH K PANDYA(3219) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
MR JF MEHTA(461) for the Opponent(s)/Respondent(s) No. 2
MS. SHRUTI PATHAK, APP for the Opponent(s)/Respondent(s) No. 1
==========================================================

     CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                Date : 04/05/2026

                                 ORAL ORDER


1.       This Criminal Appeal filed under Section 378 of the Code of
Criminal Procedure, 1973 (“Code or CrPC”) / Section 419 of the
Bharatiya Nagarik Suraksha Sanhita, 2023 (`BNSS’ for short) by the
Complainant against the impugned judgment and order whereby the
learned trial Court had acquitted the respondent/s/accused of the charge
under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter
referred to as the ‘NI Act’ for short).

2.     Heard learned advocates for the parties. Learned APP has submitted
that this matter is required to be transferred in view of the recent decision
of this Court passed in Criminal Miscellaneous Application Nos. 12753
of 2019 with 12908 of 2019.

3.     Before entering into the merits of this case, this Court deems it
proper to refer to the latest decision rendered by this Court in the case of
Shivsinh Ganpatsinh Solanki V/s State of Gujarat & Anr. being
Criminal Miscellaneous Application Nos. 12753 of 2019 with 12908 of


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2019, wherein, after considering the various judgments of the Hon’ble
Supreme Court, more particularly, the judgment in the matter of M/s
Celestium Financial V/s A.Gyanasekaran. reported in 2025 INSC 804,
has held (in Paragraph Nos.11, 19 to 23, 31, 32, 34 43, 56, 78 to 80) as
under:

         “    xxxxx

         11. Upon a perusal of the aforesaid judgment, it becomes
             evident that in paragraph 7.7 the Apex Court has, in clear
             terms, recognized that a Complainant under Section 138 of
             the NI Act, having suffered financial loss and injury arising
             from the dishonour of a cheque, is an “aggrieved party”
             and, therefore, falls within the definition of a “Victim”
             under Section 2(wa) of the Code.

              xxxxx

         19. Having dealt with the first limb of the argument, the only
             other argument which can possibly be made is that the
             Victim has the option to choose the hat that he wishes to
             wear (i.e., that of a Victim or of a Complainant). It can be
             argued that if the Victim chooses to appeal as a Victim,
             he/she can go under Section 372 of the Code and if as a
             Complainant, then under Section 378 of the Code.

         20. It is clear that the Code provides for two remedies. First,
             under Section 372 for a Victim. Second, under Section
             378(4) for a Complainant. There is no confusion if a person
             is either a Victim or a Complainant. There is some
             divergence of thought when the Victim is also the
             Complainant.

         21. While trying to approach this issue, at a bare glance, the
             statutory framework appears to offer a Complainant (who is
             a Victim in given case) two parallel avenues of appeal (i.e.,
             Section 372 and Section 378). Therefore, one may well
             argue that it is for the person to choose the hat that he
             wishes to wear to file the Appeal.

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   22. This argument, undoubtedly, seems attractive at first blush.
       However, venturing a little deeper, it turns out to be
       wanting. This is for several reasons which are as follows.

   23. First, a Victim was given a right to file an Appeal under the
       Code pursuant to some object and keeping in mind some
       reasons thereof. Relevant extract of the Statement of Objects
       and Reasons of the Criminal Amendment Act, 2009 [Act 5 of
       2009] by way of which the proviso to Section 372 of the
       Code was introduced, is extracted hereinbelow:

                   At present, the Victims are the worst sufferers in
                   a crime and they don't have much role in the
                   court proceedings. They need to be given
                   certain rights and compensation, so that there
                   is no distortion of the criminal justice system.
                   (emphasis supplied).
          xxxxx

   31. Bare perusal of the language of the provision, along with the
       law as laid down by the Hon’ble Apex Court in Celestium,
       Mahabir (supra) and Joseph (supra) would show in certain
       terms that the right of a Victim to file an Appeal against an
       Order of acquittal is on a higher footing than that of a
       Complainant. This is for the simple reason, that the Victim,
       in essence is a sufferer/aggrieved party of the alleged
       offence, who has been conferred with this right by the
       legislature, which is not the case for a Complainant.
   32. Hence, to contend that a Victim may simply proceed as a
       Complainant under Section 378 of the Code would then
       render illusory, the very purpose for which an independent
       and substantive right of appeal was conferred upon a Victim.
       Such an interpretation would dilute the legislative intent
       behind introducing a distinct, unqualified appellate remedy
       under the proviso to Section 372 of the Code and would fail
       to give meaningful effect to that statutory right.
          xxxxx



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R/CR.A/1902/2021                              ORDER DATED: 04/05/2026




   34. Second, as regards the question of “choice” or “election,”
       this Court is not persuaded to readily accept (neither would
       it be possible for anyone to readily infer) that a person who
       is aware of the statutory right to appeal as a Victim (as an
       absolute right) would voluntarily subject himself to the more
       taxing requirements of Section 378(4) of the Code by
       appealing as a Complainant, i.e., to seek special leave of the
       Court for filing the Appeal.
          xxxxx
   43. A harmonious reading of the provisions therefore requires
       that, for the purpose of appellate remedy, a Victim, though a
       Complainant in a given case, must proceed under Section
       372 of the Code rather than invoking Section 378(4) of the
       Code.
          xxxxx

   56. In the present case, in Section 372 of the Code, the said
       Appeal has to be filed before the Sessions Court. The Apex
       Court, in the said judgment, has also taken into
       consideration that the acquittal would be challenged at the
       stage of first appeal before the Sessions Court. The Appeal
       would not lie to the High Court.
          xxxxx

   78. For the foregoing reasons, this Court holds that where an
       order of acquittal is rendered by a Magistrate, the statutory
       remedy available to the Victim is to institute an appeal
       before the Sessions Court in terms of the proviso to Section
       372 of the Code, which mandates that such an appeal shall
       lie to the court that would ordinarily entertain an appeal
       against an order of conviction passed by that Court.
   79. In view of the above, it transpires that the Complainant, in a
       complaint under Section 138 of the N.I. Act, being a Victim,
       has a specific right to appeal under proviso of Section 372 of
       the Code to the Court which is immediately superior in
       hierarchy i.e., the Sessions Court.
   80. In view of the above, the applications/appeals which are


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              pending before this Court can be disposed of with a
              direction to transfer the said application/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 and
              numbered accordingly.
              xxxxx”

4. Therefore, it has been held in the aforesaid judgment that the
Complainant, in a Complaint under Section 138 of the N.I. Act, being a
Victim, has a specific right to appeal under proviso of Section 372 of the
Code (Section 413 of BNSS) to the Court which is immediately superior
in hierarchy i.e., the Sessions Court. The applications for leave to appeal/
appeals which are pending before this Court can be disposed of with a
direction to transfer the said application/appeal to the concerned
Sessions Court.

5. In the present case also, given the position of law as now settled and
since the Complainant in the present case is also a Victim, there is no
reason for this Court to take any view different from that taken in
Shivsinh Ganpatsinh (supra).

6. In view of the above, 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. The Registry is directed to transfer
the entire record of the case, including the certified copies of the order
impugned and Record and Proceedings, if lying with this Court, to the
concerned lower Appellate Court, forthwith. It is open for the parties to



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       R/CR.A/1902/2021                                                    ORDER DATED: 04/05/2026




 agitate all the grievances before the concerned Court afresh. It is
 clarified that this Court has not gone into the merits of the matter at this
 stage.


                                                                         (SANJEEV J.THAKER,J)
ADITYA SINGH

Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: ADITYA SINGH(HC02376), ENGLISH STENO GRADE-II\, at High Court of Gujarat on 04/05/2026 14:55:56




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