ZALA MAHENDRASINH KESHARISINHversusSTATE OF GUJARAT

      R/CR.A/1049/2022                                     ORDER DATED: 12/06/2026




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


      R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1049 of 2022

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                         ZALA MAHENDRASINH KESHARISINH
                                      Versus
                             STATE OF GUJARAT & ANR.
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Appearance:
DR. HARDIK K RAVAL(6366) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
MS JIRGA JHAVERI 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 HEMANT M. PRACHCHHAK

                                    Date : 12/06/2026

                                     ORAL ORDER


1.      The present appeal is filed by the appellant – original
complainant under Section 378 (4) 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 31.03.2022 passed by the learned
Judicial Magistrate First Class, Talod (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



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parties.

3.     Learned Additional Public Prosecutor for respondent –
State of Gujarat has submitted that 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.

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.

5.     Learned Additional Public Prosecutor has pointed out

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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


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   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.

   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


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        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.”


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 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
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



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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 12/06/2026 18:14:12




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