BHARATBHAI GORDHANBHAI DHOLARIYAversusSTATE OF GUJARAT

       R/CR.A/752/2024                               ORDER DATED: 09/02/2026




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 752 of 2024

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                    BHARATBHAI GORDHANBHAI DHOLARIYA
                                  Versus
                         STATE OF GUJARAT & ANR.
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Appearance:
MR A A ZABUAWALA(6823) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
MS DHWANI TRIPATHI, APP for the Opponent(s)/Respondent(s) No. 1
SURESH M CHAUDHARY(9938) for the Opponent(s)/Respondent(s) No. 2
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     CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                               Date : 09/02/2026

                                ORAL ORDER


1.      This appeal is filed under Section 378 of the Code of Criminal
       Procedure, 1973 (“Code or CrPC”)/ 419 of the Bharatiya Nagarik
       Surakhsha Sanhita Act. 2023, (“BNSS”) 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 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 latest decision rendered by this Court in the



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R/CR.A/752/2024                               ORDER DATED: 09/02/2026




case of Shivsinh Ganpatsinh Solanki V/s State of Gujarat & Anr.
being Criminal Miscellaneous Application Nos. 12753 of 2019
with 12908 of 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:

   “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.

   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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R/CR.A/752/2024                                    ORDER DATED: 09/02/2026




   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).
   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.
   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

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     R/CR.A/752/2024                                ORDER DATED: 09/02/2026




              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.
        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.
        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.
        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
            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.”
4.    Therefore, it has been held in the aforesaid judgment that the
     Complainant, in a Complaint under Section 138 of the N.I. Act,


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                 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, the 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 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)
          URIL RANA


Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: RANA URIL K(HC01406), PRIVATE SECRETARY, at High Court of Gujarat on 09/02/2026 18:52:53




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