Complainant In NI Act Case Is 'Victim', Entitled To Appeal Before Sessions Court: Gujarat HC

In the case of an offence alleged against In a significant procedural clarification regarding the appellate rights of complainants in cheque dishonour cases, the High Court of Gujarat has ruled that a complainant under Section 138 of the Negotiable Instruments Act, 1881 is a 'victim' and possesses the inherent right to challenge an acquittal before the Sessions Court rather than the High Court.

Justice Hemant M. Prachchhak, presiding over the matter, addressed a long-pending appeal against an acquittal order. The Court focused on the evolving legal landscape following recent judicial pronouncements concerning the forum for appeals in private complaints. The central issue was whether a complainant must seek special leave from the High Court under Section 378(4) of the Criminal Procedure Code, 1973 or can directly approach the Sessions Court under the proviso to Section 372 of the Criminal Procedure Code, 1973 (now Section 413 of the Bharatiya Nagrik Suraksha Sanhita, 2023).

Complainant's Status as a Victim under NI Act

The Court relied extensively on the principle that the person whose cheque has been dishonoured suffers the direct impact of the offence. Citing Celestium Financial Vs. A.Gnanasekaran Etc., the Bench noted that a complainant in such proceedings does not cease to be a victim merely because the case commenced via a private complaint. The Court, in its reasoning, observed: "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."

Right to Appeal Parity Between Accused and Victim

The Court emphasized that the right of a victim must be placed on par with the right of an accused. It was highlighted that while an accused has a right to appeal a conviction under Section 374 of the Criminal Procedure Code, 1973 without conditions, a victim should similarly have an unconditional right to prefer an appeal against an acquittal. The judgment underscored that requiring special leave under Section 378(4) of the Criminal Procedure Code, 1973 would be contrary to the legislative intent behind the insertion of the proviso to Section 372.

The Court further referred to its previous decision in Shivsinh Ganpatsinh Solanki Vs. State of Gujarat and Thakar Hariprasad Dalsukhram Vs. State of Gujarat and another to solidify the direction for transferring such matters to the appropriate appellate hierarchy.

Court Directions

The Court has the following directions:

"The Registry is directed 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."

Background:

The case originated from a complaint filed by Khumansinh Pratapsinh Chauhan against Pravinbhai Dahyabhai Patel regarding the dishonour of cheques, an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. On March 18, 2009, the Judicial Magistrate First Class, Jhagadia, passed a judgment acquitting the accused. The complainant initially filed a criminal appeal before the High Court under Section 378 of the Criminal Procedure Code, 1973.

During the proceedings, the Additional Public Prosecutor and the respondent's counsel pointed out the decision in Celestium Financial Vs. A.Gnanasekaran Etc., which categorized complainants as victims entitled to appeal before the Sessions Court. While it was noted that the issue is currently pending before a larger bench of the Supreme Court, the High Court decided to dispose of the present appeal by transferring it to the lower appellate court to ensure expeditious disposal without entering into the merits of the case.

Case Details:
Case No.: CRIMINAL APPEAL NO. 2296 of 2009
NeutralCitation: 2026:GUJHC:34341
Case Title: KHUMANSINH PRATAPSINH CHAUHAN & ORS. Versus PRAVINBHAI DAHYABHAI PATEL & ANR.
Appearances:
For the Petitioner(s): MR BC DAVE
For the Respondent(s): MR AB ACHARYA, MS JYOTI BHATT ADDITIONAL PUBLIC PROSECUTOR

Source: 2026 CaseBase(GUJ) 280