Holding

The appeal must be transferred to the Sessions Court and treated as an appeal under the proviso to Section 372 of the CrPC (or Section 413 of the BNSS).

Summary

The original complainant, Rohan Arvindbhai Modiyaa, appealed against the acquittal of the accused under Section 138 of the Negotiable Instruments Act. The appeal was filed under Section 378 of the Criminal Procedure Code and Section 419 of the Bharatiya Nagrik Suraksha Sanhita. The Gujarat High Court considered the Supreme Court’s decision in Celestium Financial v. A. Gnanasekaran, which held that the complainant is the victim and may appeal under the proviso to Section 372 CrPC (or Section 413 BNSS). Relying on that precedent and earlier Gujarat High Court rulings, the Court ordered that the appeal be transferred to the appropriate Sessions Court and treated as an appeal under the said proviso. No merits of the case were examined, and the parties were directed to expedite the proceedings in the lower court.

Issues considered

The complainant/victim’s right to appeal an acquittal under Section 138 NI Act under the proviso to Section 372 CrPC/Section 413 BNSS
The appropriate forum for such an appeal

Legislation cited

Code of Criminal Procedure, 1973s. 200, s. 372, s. 374, s. 378
Negotiable Instruments Act, 1881s. 138

Subjects

appealvictim's rightSection 138 NI Actproviso to Section 372 CrPCBNSSHigh Courttransfer of appealacquittal

Judgment

R/CR.MA/14471/2025 ORDER DATED: 30/06/2026

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO.
14471 of 2025
In
R/CRIMINAL APPEAL/1466/2026
With
R/CRIMINAL APPEAL NO. 1466 of 2026
==========================================
ROHAN ARVINDBHAI MODIYA
Versus
STATE OF GUJARAT & ANR.
==========================================
Appearance:
DR. HARDIK K RAVAL(6366) for the Applicant(s) No. 1
BHISHMA A. RAWAL(12270) for the Respondent(s) No. 2
HCLS COMMITTEE(4998) for the Respondent(s) No. 2
MS JIRGA JHAVERI APP for the Respondent(s) No. 1
==========================================

CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

Date : 30/06/2026

ORAL ORDER

ORDER IN CRIMINAL MISC APPLICATION:

Heard learned counsel appearing for the respective parties.

Considering the submissions and the averments made in the
application, leave to appeal is granted. The application stands
disposed of accordingly.

ORDER IN CRIMINAL APPEAL:

1. ADMIT. Learned Additional Public Prosecutor waives service of

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notice of admission on behalf of respondent – State of Gujarat and
learned counsel waives service of notice of admission on behalf of
respondent – accused.

2. 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 17.03.2025
passed by the learned 5 th Additional Chief Judicial Magistrate,
Gandhinagar (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).

3. Heard learned counsel appearing for the respective parties.

4. 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.

5. 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

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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.

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.

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

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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. 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.

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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 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

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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.

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)
V.R. PANCHAL

Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: VIJAYKUMAR RAMESHBHAI PANCHAL(HC00171), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 01/07/2026 17:05:39

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