M/s. ANKUR POLYMERS THRO ANKUR PRAKASHCHANDRA CHOKHAWALAversusSTATE OF GUJARAT

     R/CR.MA/15533/2024                                   JUDGMENT DATED: 12/06/2026




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 15533
                          of 2024

                           In F/CRIMINAL APPEAL/29673/2024

                                        With
                          F/CRIMINAL APPEAL NO. 29673 of 2024

FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
================================================================

              Approved for Reporting                    Yes          No

================================================================
          M/s. ANKUR POLYMERS THRO ANKUR PRAKASHCHANDRA
                            CHOKHAWALA
                                Versus
                       STATE OF GUJARAT & ORS.
================================================================
Appearance:
VISHAL K ANANDJIWALA(7798) for the Applicant(s) No. 1
MR CHINTAN S POPAT(5004) for the Respondent(s) No. 3,4
NOTICE SERVED for the Respondent(s) No. 2
NOTICE UNSERVED for the Respondent(s) No. 5
MS JYOTI BHATT, ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 1
================================================================

 CORAM:HONOURABLE MR. JUSTICE HEMANT M.
       PRACHCHHAK

                                    Date : 12/06/2026

                                      JUDGMENT


1.        The present application is filed by the applicant – original
complainant under Section 378(4) of the Criminal Procedure Code,
1973 (hereinafter referred to as ‘the Code’ for short) seeking leave to
appeal against the judgment and order dated 03.06.2024 passed by
the learned Additional Chief Judicial Magistrate, Surat (hereinafter be
referred to as “the Trial Court, whereby the learned trial Court had


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     R/CR.MA/15533/2024                             JUDGMENT DATED: 12/06/2026




acquitted the respondents - 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.        Learned Additional Public Prosecutor for respondent – State of
Gujarat and learned counsel for the respondent/s - accused have
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 and order 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


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     R/CR.MA/15533/2024                              JUDGMENT DATED: 12/06/2026




which is immediately superior in hierarchy i.e. the Sessions Court.
Therefore, the application for leave to appeal which is pending before
this Court can be disposed of with a direction to transfer the said
application for leave to appeal alongwith the appeal to the concerned
Sessions Court.


5.        In view of the above, learned counsel for respondents - 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-
reaching consequences. Therefore, the matter is to be decided
subject to the final outcome of the reference Court.


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


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R/CR.MA/15533/2024                                 JUDGMENT DATED: 12/06/2026




      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
      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.



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     R/CR.MA/15533/2024                                    JUDGMENT DATED: 12/06/2026




           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.”


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 application as
well as the appeal are disposed of with a direction to the Registry to


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      R/CR.MA/15533/2024                                                        JUDGMENT DATED: 12/06/2026




 transfer the application alongwith 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 15/06/2026 17:30:14


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