PREMJIBHAI MADHABHAI MAKVANA (RATHOD)versusSTATE OF GUJARAT

     R/CR.MA/13034/2026                        ORDER DATED: 12/06/2026




        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 13034
                             of 2026
                In F/CRIMINAL APPEAL/24506/2026
                              With
              F/CRIMINAL APPEAL NO. 24506 of 2026
==========================================================
                PREMJIBHAI MADHABHAI MAKVANA (RATHOD)
                                Versus
                       STATE OF GUJARAT & ANR.
==========================================================
Appearance:
A A DAUDIVHORA(7516) for the Applicant(s) No. 1
MS JYOTI BHATT ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
==========================================================
  CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

                           Date : 12/06/2026

                            ORAL ORDER
1.      The present application is filed by the applicant –
original complainant under Section 419 (4) of the Bharatiya
Nagrik Suraksha Sanhita, 2023 (hereinafter referred to as
‘BNSS’ for short) seeking leave to Appeal against the
judgment and order dated 28.04.2026 passed by the learned
2nd Additional Chief Judicial Magistrate, (Special NI Court)
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 short) .

2.      Heard learned counsel appearing for the respective
parties.

3.      Learned Additional Public Prosecutor for respondent
No.1 – State of Gujarat has submitted that this matter is


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     R/CR.MA/13034/2026                      ORDER DATED: 12/06/2026




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 and order 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. Therefore, the application for leave to
appeal which is pending before this Court can be disposed of
with a direction to transfer the said application for leave to
appeal to the concerned Sessions Court.

5.      Learned Additional Public Prosecutor has pointed out



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     R/CR.MA/13034/2026                                       ORDER DATED: 12/06/2026




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.

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 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 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.



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R/CR.MA/13034/2026                               ORDER DATED: 12/06/2026




    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 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



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     R/CR.MA/13034/2026                                                                 ORDER DATED: 12/06/2026




            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.”
7.        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 application as well as appeal are disposed of with a
direction to the Registry to transfer the application as well as
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.

8.        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)
SURESH SOLANKI

 Original copy of this order has been signed by the Hon'ble Judge.
 Digitally signed by: SURESHKUMAR MOTIBHAI SOLANKI(HC00208), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 15/06/2026 17:40:29




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