BANUBIBI AKBARMIYA SAIYAD THROUGH POA SAIYAD NISARMIYA PIRSABMIYAversusSAIYAD SHABBIRALI AKBARMIYA

      R/CR.A/1760/2025                                 ORDER DATED: 13/07/2026




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1760 of 2025

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     BANUBIBI AKBARMIYA SAIYAD THROUGH POA SAIYAD NISARMIYA
                            PIRSABMIYA
                               Versus
                SAIYAD SHABBIRALI AKBARMIYA & ANR.
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Appearance:
MR ARPIT A KAPADIA(3974) for the Appellant(s) No. 1
MR AFTABHUSEN ANSARI(5320) for the Opponent(s)/Respondent(s) No. 1
MS JYOTI BHATT, ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                             Date : 13/07/2026

                                  ORDER


1.      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 21.12.2024
passed by the learned 20th Additional Chief Judicial Magistrate,
Vadodara (hereinafter be referred to as “the Trial Court), whereby the
learned trial Court has 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 parties.


3.      This matter is required to be transferred in view of the recent
decision of the Hon’ble Supreme Court in the case of                 Celestium



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     R/CR.A/1760/2025                            ORDER DATED: 13/07/2026




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.     In view of the above, learned counsel for respondent - accused
submits that let the matter be remanded back to the concerned
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


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     R/CR.A/1760/2025                                   ORDER DATED: 13/07/2026




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 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



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R/CR.A/1760/2025                                     ORDER DATED: 13/07/2026




   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 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.”




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         R/CR.A/1760/2025                                                         ORDER DATED: 13/07/2026




 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
 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)

 Dolly




Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: DOLLYBEN CHETANBHAI VADUKAR(HC01392), PRIVATE SECRETARY, at High Court of Gujarat on 13/07/2026 18:15:34


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