VASUDEV BABUBHAI KAPADIYAversusPARITOSH KISHORBHAI JARIWALA

     R/CR.A/1998/2021                                  ORDER DATED: 13/07/2026




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

     R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1998 of 2021

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                      VASUDEV BABUBHAI KAPADIYA
                                Versus
                  PARITOSH KISHORBHAI JARIWALA & ANR.
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Appearance:
ADVOCATE NOTICE NOT RECD BACK for the Appellant(s) No. 1
MR KUNAL S SHAH(5282) 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 22.10.2021
passed by the learned 22nd Additional Chief Judicial Magistrate, Surat
(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
Financial Vs. A.Gnanasekaran Etc. reported in 2025 (3) GLH 747


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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
gives an authoritative pronouncement on this issue as it has far-


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     R/CR.A/1998/2021                                ORDER DATED: 13/07/2026




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.



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R/CR.A/1998/2021                                   ORDER DATED: 13/07/2026




   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
   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.



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            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.”


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 18:14:41

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