PANKAJBHAI RAMNIKLAL AJMERAversusARIFBHAI MAHMADBHAI MAKWANA

     R/CR.A/368/2009                                 JUDGMENT DATED: 17/06/2026




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 368 of 2009


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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            Approved for Reporting                  Yes          No

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                       PANKAJBHAI RAMNIKLAL AJMERA
                                  Versus
                   ARIFBHAI MAHMADBHAI MAKWANA & ANR.
==========================================================
Appearance:
MR SP KOTIA(5687) for the Appellant(s) No. 1
BHAVIN B THAKAR(9371) for the Opponent(s)/Respondent(s) No. 1
MS JYOTI BHATT ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                                Date : 17/06/2026

                                  JUDGMENT


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) / under Section 419 of
the Bharatiya Nagrik Suraksha Sanhita, 2023 (hereinafter referred to
as ‘BNSS’ for short) against the judgment and order dated 17.12.2008
passed by the learned Senior Civil Judge and Judicial Magistrate First
Class, Bhavnagar (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



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short).


2.      Heard learned counsel appearing for the respective parties.


3.      Learned Additional Public Prosecutor for respondent – State of
Gujarat and learned counsel for the respondent/s - accused have
submitted that 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 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.      In view of the above, learned counsel for respondent - accused


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submits that let the matter be remanded back to the concerned
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 consequences. Therefore, the matter is to be decided
subject to the final outcome of the reference Court.


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


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     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 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


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          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 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.


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   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)
   ANUSRI



Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: ANUSRI VASU(HC02352), ENGLISH STENO GRADE-II\, at High Court of Gujarat on 17/06/2026 18:41:27




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