Complainant In Section 138 NI Act Cases Is A Victim: Gujarat HC

The Gujarat High Court, in Ashokbhai Ramjibhai Maniya, Proprietor/Authorized Person of Zeel Constructions v. State of Gujarat & Ors., held that a complainant in a cheque bounce case qualifies as a "victim" and must file an appeal against acquittal before the Sessions Court rather than the High Court. The Court observed that this view aligns with the evolving judicial consensus that grants complainants broader appellate rights without requiring them to obtain special leave.

Justice Hemant M. Prachchhak presided over the matter, interpreting the appellate hierarchy in light of recent Supreme Court precedents. The Court emphasized that for offences under Section 138 of the Negotiable Instruments Act, 1881, the complainant and the victim are effectively the same entity, entitled to the benefits of the proviso to Section 372 of the Criminal Procedure Code, 1973.

Complainant's Status as 'Victim' Under the NI Act

The Court noted that the legal landscape regarding appeals against acquittal in cheque bounce cases has shifted. Relying on the Supreme Court's decision in Celestium Financial Vs. A.Gnanasekaran Etc., the Court observed that a complainant does not cease to be a victim merely because the proceedings 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."

Appellate Hierarchy and Statutory Transitions

Addressing the transition from the old procedural code to the Bharatiya Nagrik Suraksha Sanhita, 2023, the Court highlighted that the right to appeal to the immediate superior court (Sessions Court) is an absolute right for a victim, paralleling the rights of a convicted accused. The Court noted that requiring a victim to seek special leave under Section 378(4) of the Criminal Procedure Code, 1973 would be contrary to legislative intent.

Court Directions

The Court has the following directions:

"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."

Additionally, the Court directed the lower Appellate Court to endeavor to dispose of the matter as expeditiously as possible, given the time already elapsed.

Background:

The dispute originated from a complaint filed by the proprietor of Zeel Constructions against the respondents for an offence under Section 138 of the Negotiable Instruments Act, 1881. The Trial Court, specifically the 2nd Additional Chief Judicial Magistrate, Surat, had passed a judgment on March 16, 2018, acquitting the respondents.

The appellant initially challenged this acquittal before the High Court under Section 378 of the Criminal Procedure Code, 1973. However, during the pendency of the appeal, the legal position was clarified by the Apex Court in Celestium Financial Vs. A.Gnanasekaran Etc. and subsequently followed by the High Court in Shivsinh Ganpatsinh Solanki Vs. State of Gujarat and Thakar Hariprasad Dalsukhram Vs. State of Gujarat and another. These decisions established that the Sessions Court is the proper forum for such appeals by victims. Consequently, the High Court disposed of the appeal by transferring it to the competent Sessions Court without entering into the merits of the case.

Case Details:
Case No.: R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2027 of 2018
NeutralCitation: 2026:GUJHC:36975
Case Title: ASHOKBHAI RAMJIBHAI MANIYA PROPRIETOR/AUTHORIZED PERSON OF ZEEL CONSTRUCTIONS Versus STATE OF GUJARAT & ORS.
Appearances:
For the Petitioner(s): MR YV VAGHELA
For the Respondent(s): MS JYOTI BHATT, ADDL. PUBLIC PROSECUTOR for Respondent No. 1

Source: 2026 CaseBase(GUJ) 296