ABU TEXTILES THRO ZUNEDAHMAD ZUBERAHMAD SHAIKHversusSTATE OF GUJARAT

     R/CR.MA/22937/2021                                ORDER DATED: 06/08/2026




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 22937
                          of 2021

                          In R/CRIMINAL APPEAL/2025/2021

                                   With
                     R/CRIMINAL APPEAL NO. 2025 of 2021
==================================================
           ABU TEXTILES THRO ZUNEDAHMAD ZUBERAHMAD SHAIKH
                                  Versus
                         STATE OF GUJARAT & ORS.
==================================================
Appearance:
MR ZUBIN F BHARDA(159) for the Applicant(s) No. 1
MR AMIT K DAVE(5860) for the Respondent(s) No. 2,3,4
MS JIRGA JHAVERI, ADDL. PUBLIC PROSECUTOR for the Respondent(s) No. 1
==================================================

     CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                                 Date : 06/08/2026

                                      ORDER


1.      This application is 8led under Section 378(4) of the Code of
Criminal Procedure, 1973 (“Code or CrPC”) / Section 419(4) of the
Bharatiya Nagrik Suraksha Sanhita, 2023 (‘BNSS’ for short) by the
applicant - complainant seeking leave to prefer an appeal against the
judgment and order dated 08.07.2017 passed by the learned 3 rd
Additional Senior Civil Judge & Chief Judicial Magistrate, Surat
(hereinafter be referred to as “the Trial Court), whereby the learned
trial Court has acquitted the respondents - accused for the oIence
under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as the ‘NI Act’ for short).


2.      This matter is required to be transferred in view of the recent


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     R/CR.MA/22937/2021                            ORDER DATED: 06/08/2026




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 oIence under Section
138 of the Act and, therefore, the complainant has right to 8le 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.


3.      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 speci8c right to 8le 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.


4.      In view of the above, learned counsel for respondents - accused
submits that let the matter be remanded back to the concerned
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
case of M/s. Everest Automobiles Vs. M/s. Ranjit Enterprises in Special


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     R/CR.MA/22937/2021                                   ORDER DATED: 06/08/2026




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
8nal 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 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:


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R/CR.MA/22937/2021                                     ORDER DATED: 06/08/2026




    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
    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



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     R/CR.MA/22937/2021                                    ORDER DATED: 06/08/2026




         de*nition of victim under Section 2(wa) of the CrPC.”


7.      In the decision in case of M/s. Everest Automobiles Vs. M/s.
Rajit Enterprises dated 12.02.2026 passed in Special Leave to Appeal
No.12350 of 2024 the Hon’ble Apex Court observed as under:-

         “Reliance is placed by the learned counsel for the petitioner on
         the recent judgment of this Court in “Celestium Financial vs. A.
         Gnanasekaran1”. By way of the said judgment, a co-ordinate
         Bench of this Court held that a complainant in a case arising
         under Section 138 of the Negotiable Instruments Act, 1881, is a
         ‘victim’ who would be entitled to *le an appeal under the proviso
         to Section 372 of the Code of Criminal Procedure, 1973. It was
         further held that such appeal could be *led against an order of
         acquittal under the proviso to Section 372 of the Code without
         seeking special leave to appeal under Section 378(4) of the
         Code.

         However, this judgment did not take into account the earlier
         decisions of this Court in Satya Pal Singh vs. State of M.P. and
         Subhash Chand vs. State (Delhi Administration), which have a
         bearing on both the aspects that were considered in the
         aforestated judgment, as they held to the contrary.”



8.      In view of the aforesaid facts and the settled principles, learned
counsel for the applicant seeks permission to withdraw this
application. Permission as prayed for is granted. The present
application as well as the connected appeal are disposed of as
withdrawn, with a liberty to 8le appropriate appeal before the
concerned Court, within a period of four months from the date of this
order. Record and proceedings, if lying with this Court, be remitted
back to the concerned Court forthwith.



9.      It is clari8ed that the period that may be consumed in 8ling the
present appeal may not be counted as delay in 8ling such appeal
before the concerned Court. Moreover, the certi8ed copy of the
impugned judgment, be handed over to the applicant/appellant, as


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           R/CR.MA/22937/2021                                                        ORDER DATED: 06/08/2026




   per Rules, if asked for. It is open for the parties to agitate all the
   grievance before the concerned Court afresh.


   10.        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, if so 8led, as expeditiously as
   possible.


   11.        It is clari8ed that this Court has not gone into the merits of the
   matter at this stage.

                                                                      (HEMANT M. PRACHCHHAK,J)

   Dolly




Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: DOLLYBEN CHETANBHAI VADUKAR(HC01392), PRIVATE SECRETARY, at High Court of Gujarat on 06/08/2026 17:38:29



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