Bombay High Court
PRAFUL H. JAINversusRAJESH J. SARVAIYA AND ORS
- Decided
- Disposal
- Disposed Off
- Bench
- R N LADDHA
Holding
A victim under Section 138 NI Act may appeal an acquittal and the appeal can be transferred to the Sessions Court for disposal.
Summary
Praful H. Jain appealed against the acquittal of four respondents in a case under Section 138 of the Negotiable Instruments Act. The appellant argued that, under the proviso to Section 372 of the Code of Criminal Procedure, a victim has a statutory right to appeal an acquittal and that the appeal should be transferred to the Sessions Court for adjudication. The High Court relied on the Supreme Court decision in Celestium Financial v. A. Gnanasekaran and several High Court precedents supporting the right to appeal and the permissibility of transfer. It found no legal impediment to transferring the appeal and directed the registrar to forward the record to the appropriate Sessions Court. The appeal was therefore transferred, and the High Court disposed of the matter, directing the Sessions Court to dispose of it expeditiously.
Issues considered
- The victim of an offence under Section 138 of the Negotiable Instruments Act has a statutory right to appeal an order of acquittal under the proviso to Section 372 of the Code of Criminal Procedure.
- Whether the appeal against the acquittal can be transferred from the High Court to the Sessions Court.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 372
- Negotiable Instruments Act, 1881 — s. 138
Subjects
- Section 138 NI Act
- appeal against acquittal
- transfer of appeal
- Criminal Procedure Code
- Negotiable Instruments Act
- High Court
- Sessions Court
Judgment
SMITA Digitally signed by SMITA
JOHNSON GONSALVES
JOHNSON Date: 2026.04.01 20:28:27
GONSALVES +0530
sg 28.apeal305-11.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Criminal Appeal No.305 of 2011
Praful H. Jain
Age 48 years,
Proprietor of Sun Colour Industries,
having his office at Sohanji, Tilak Road,
Extension Near BEST Office,
Near Dadar T.T., Mumbai – 400 031. … Appellant
versus
1. Rajesh J. Sarvaiya,
Carrying on business at 159-A,
“B” Wing, C.S.T. Road, Kalina,
Santacruz (E), Mumbai – 400 098
and now at present carrying on his
business at Air Condition Market,
Office No.5/26, 5th Floor, Tardeo,
Mumbai – 400 034
2. Sameer D Sarvaiya,
Carrying on business at 159-A,
“B” Wing, C.S.T. Road, Kalina,
Santacruz (E), Mumbai – 400 098
and now at present carrying on his
business at Air Condition Market,
Office No.5/26, 5th Floor, Tardeo,
Mumbai – 400 034
3. Ketan D Sarvaiya,
Carrying on business at 159-A,
“B” Wing, C.S.T. Road, Kalina,
Santacruz (E), Mumbai – 400 098
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and now at present carrying on his
business at Air Condition Market,
Office No.5/26, 5th Floor, Tardeo,
Mumbai – 400 034
4.M/s. Serene Industries Ltd.,
Carrying on business at 159-A,
“B” Wing, C.S.T. Road, Kalina,
Santacruz (E), Mumbai – 400 098
and now at present carrying on its
business at Air Condition Market,
Office No.5/26, 5th Floor, Tardeo,
Mumbai – 400 034
5. The State of Maharashtra … Respondents
----
Mr Omkar Nagvekar, i/b. Mr MK Kocharekar, for the
appellant.
None for respondents No.1 to 4.
Ms SE Phad, APP, for respondent No.5/ State.
----
Coram: R.N. Laddha, J.
Date: 27 March 2026.
P.C.:
. The present appeal arises from the judgment and order
dated 21 May 2010 passed by the learned Metropolitan
Magistrate, 14th Court, Girgaon, Mumbai, in CC
No.4102/SS/2005, whereby respondents No.1 to 4 were
acquitted of the offence punishable under Section 138 of the
Negotiable Instruments Act, 1881.
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2. The learned Counsel appearing on behalf of the appellant,
has placed reliance upon the judgment of the Hon'ble Supreme
Court in Celestium Financial vs A. Gnanasekaran, 2025 SCC
OnLine SC 1320, to submit that a victim of an offence,
including a complainant under Section 138 of the NI Act, has
the statutory right to prefer an appeal against an order of
acquittal under the proviso to Section 372 of the Code of
Criminal Procedure, 1973. The learned Counsel further
submits that in order to safeguard the statutory remedy, the
transfer of the present appeal is necessary. Reliance is also
placed on the decisions passed in (i) Kotak Mahindra Finance
Ltd vs Nobiletto Finlease & Investments, Criminal Appeal No.
645 of 2006 dated 31 October 2005, Delhi High Court;
(ii)Pooja Trading Company vs Harishchandra Manjrekar,
Criminal Appeal No.1016 of 2006 dated 13 October 2025,
Bombay High Court; (iii) Shivputra Arwat vs Sangappa
Bhasgikar, Criminal Appeal No. 1051 of 2008 dated 8 October
2025, Bombay High Court; (iv)Salimshah Haji Shakurshan vs
Syd. Javdali Syd Anwarali, Criminal Appeal No. 167 of 2006
dated 15 October 2025, Bombay High Court at Aurangabad;
(v)Pankaj Mehta vs Vishal Hundar, 2026 SCC OnLine MP 800;
(vi)Sunil Kumar vs Daljit Kaur, 2025:PHHC:092344; and
(vii)Raj Kumar Vs Rajender, 2025:PHHC:079740, to submit
that there is no impediment for transferring the present appeal
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to the concerned Sessions Court. Having considered the
submissions advanced, this Court deems it appropriate to
transfer the present appeal to the Court of Sessions having
jurisdiction.
3. Accordingly, the learned Registrar (Judicial) is directed
forthwith to transmit the entire record and proceedings of the
appeal to the concerned Sessions Court. Upon receipt, the
Sessions Court shall register the appeal and decide the same on
its own merits in accordance with law. Considering the long
pendency of the matter, the learned Sessions Judge is requested
to dispose of the appeal expeditiously.
4. The appeal stands disposed of in the aforesaid terms.
(R.N. Laddha, J.)
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