GUJARAT STATE CO-OPERATIVE AGRICULTURE AND RURAL DEVELOPMENT BANK LIMITED, JUNAGADHversusTHE STATE OF GUJARAT

      R/CR.MA/27392/2025                                     ORDER DATED: 29/01/2026




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 27392
                          of 2025

                           In F/CRIMINAL APPEAL/51115/2025

                                    With
                      F/CRIMINAL APPEAL NO. 51115 of 2025
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       GUJARAT STATECOOPERATIVEAGRICULTURE AND RURAL
     DEVELOPMENT BANK LIMITED JUNAGADHthroNILESH PRAJAPATI
                            Versus
                   STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR.AMIT R JOSHI(6682) for the Applicant(s) No. 1
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
==========================================================

     CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                                   Date : 29/01/2026

                                    ORAL ORDER


1.       This application is filed under Section 419(4) of the Bharatiya
       Nagarik Surakhsha           Sanhita Act.      2023,    (“BNSS”)        by       the
       Complainant seeking leave to appeal to challenge the judgment and
       order dated 14.10.2025 passed in Criminal Case No.647 of 2019 by
       learned 3rd Additional Chief Judicial Magistrate, Junagadh, 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.


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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 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.,


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R/CR.MA/27392/2025                                  ORDER DATED: 29/01/2026




           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 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,”

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R/CR.MA/27392/2025                                ORDER DATED: 29/01/2026




           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.
    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.”


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             R/CR.MA/27392/2025                                                 ORDER DATED: 29/01/2026




       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).

       6.       In view of the above, this Application and Appeal are 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 30/01/2026 12:05:47

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