KARSHANBHAI JIVABHAI GOHILversusSTATE OF GUJARAT

       R/CR.A/776/2024                             ORDER DATED: 09/02/2026




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 776 of 2024

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                         KARSHANBHAI JIVABHAI GOHIL
                                   Versus
                          STATE OF GUJARAT & ANR.
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Appearance:
MR RAXIT J DHOLAKIA(3709) for the Appellant(s) No. 1
PRIYANK A TRIVEDI(9061) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
MS DHWANI TRIPATHI, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
RULE SERVED 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 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.

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
2019, wherein, after considering the various judgments of the Hon’ble



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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.

         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


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R/CR.A/776/2024                                          ORDER DATED: 09/02/2026




         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
   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



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     R/CR.A/776/2024                                       ORDER DATED: 09/02/2026




              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 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).


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         R/CR.A/776/2024                                                        ORDER DATED: 09/02/2026




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
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)
Bharat


Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: KOSHTI BHARATKUMAR(HC01064), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 09/02/2026 18:41:32




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