HIMANSHUBHAI JAYSUKHLAL CHAUHANversusSTATE OF GUJARAT

       R/CR.A/1059/2024                                ORDER DATED: 09/02/2026




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
      R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1059 of 2024
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                      HIMANSHUBHAI JAYSUKHLAL CHAUHAN
                                    Versus
                           STATE OF GUJARAT & ANR.
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Appearance:
MR BRIJESH K RAMANUJ(9898) for the Appellant(s) No. 1
MS DHWANI TRIPATHI, APP for the Opponent(s)/Respondent(s) No. 1
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     CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER

                               Date : 09/02/2026

                                 ORAL ORDER
1.     This Criminal Appeal filed under Section 378 of the Code of
       Criminal Procedure, 1973 (“Code or CrPC”) / Section 419 of the
       Bharatiya Nagarik Suraksha Sanhita, 2023 (`BNSS’ for short) by the
       Complainant against the impugned judgment and order 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.

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:

          “      xxxxx


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   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.

          xxxxx

   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.,
       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


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          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).
          xxxxx

   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.
          xxxxx
   34. Second, as regards the question of “choice” or “election,”
       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.
          xxxxx

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        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.
               xxxxx

        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.
               xxxxx

        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.
               xxxxx”


4.   Therefore, it has been held in the aforesaid judgment that the

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          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 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. 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)
 SRILATHA


Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: SRILATHA VENKATARAO UPADHYAYULA(HC00185), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 09/02/2026 18:35:38




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