[Cites 3, Cited by 0]
Gujarat High Court
Gujarat State Co. Op. Agri And Rural ... vs State Of Gujarat on 16 January, 2026
NEUTRAL CITATION
R/CR.MA/19985/2025 ORDER DATED: 16/01/2026
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 19985
of 2025
In F/CRIMINAL APPEAL/38697/2025
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GUJARAT STATE CO. OP. AGRI AND RURAL DEVEPOLMENT BANK LTD.
JUNAGADH THRO NILESH BABABHAI PRAJAPATI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR.AMIT R JOSHI(6682) for the Applicant(s) No. 1
MS SHRUTI PATHAK, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 16/01/2026
ORAL ORDER
1. This application is filed under Section 419(4) of the Bharatiya
Nagarik Surakhsha Sanhita Act. 2023, ("BNSS") by the
Complainant seeking leave to appeal to challenge the judgment and
order dated 21.07.2025 passed in Criminal Appeal No.54 of 2025 by
the learned District and Sessions Judge, Junagadh filed by
respondent no.2 by challenging conviction order dated 28.02.2025
passed in Criminal Case No.2719 of 2018 by learned Additional
Chief Judicial Magistrate, Junagadh, whereby the learned trial Court
had acquitted the respondent/s/accused of the charge under Section
138 of the Negotiable Instruments Act, 1881 (hereinafter referred to
as the `NI Act' for short).
2. Heard learned advocates for the parties.
3. Before entering into the merits of this case, this Court deems it
NEUTRAL CITATION
R/CR.MA/19985/2025 ORDER DATED: 16/01/2026
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proper to refer to the latest decision rendered by this Court in the
case of Shivsinh Ganpatsinh Solanki V/s State of Gujarat & Anr.
being Criminal Miscellaneous Application Nos. 12753 of 2019
with 12908 of 2019, wherein, after considering the various
judgments of the Hon'ble Supreme Court, more particularly, the
judgment in the matter of M/s Celestium Financial V/s
A.Gyanasekaran. reported in 2025 INSC 804, has held (in
Paragraph Nos.11, 19 to 23, 31, 32, 34 43, 56, 78 to 80) as under:
"11. Upon a perusal of the aforesaid judgment, it becomes
evident that in paragraph 7.7 the Apex Court has, in clear
terms, recognized that a Complainant under Section 138 of
the NI Act, having suffered financial loss and injury arising
from the dishonour of a cheque, is an "aggrieved party"
and, therefore, falls within the definition of a "Victim" under
Section 2(wa) of the Code.
19. Having dealt with the first limb of the argument, the only
other argument which can possibly be made is that the
Victim has the option to choose the hat that he wishes to
wear (i.e., that of a Victim or of a Complainant). It can be
argued that if the Victim chooses to appeal as a Victim,
he/she can go under Section 372 of the Code and if as a
Complainant, then under Section 378 of the Code.
20. It is clear that the Code provides for two remedies. First,
under Section 372 for a Victim. Second, under Section
378(4) for a Complainant. There is no confusion if a person
is either a Victim or a Complainant. There is some
divergence of thought when the Victim is also the
Complainant.
21. While trying to approach this issue, at a bare glance, the
statutory framework appears to offer a Complainant (who is
a Victim in given case) two parallel avenues of appeal (i.e.,
Section 372 and Section 378). Therefore, one may well argue
that it is for the person to choose the hat that he wishes to
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wear to file the Appeal.
22. This argument, undoubtedly, seems attractive at first blush.
However, venturing a little deeper, it turns out to be wanting.
This is for several reasons which are as follows.
23. First, a Victim was given a right to file an Appeal under the
Code pursuant to some object and keeping in mind some
reasons thereof. Relevant extract of the Statement of Objects
and Reasons of the Criminal Amendment Act, 2009 [Act 5 of
2009] by way of which the proviso to Section 372 of the
Code was introduced, is extracted hereinbelow:
At present, the Victims are the worst sufferers in
a crime and they don't have much role in the
court proceedings. They need to be given
certain rights and compensation, so that there
is no distortion of the criminal justice system.
(emphasis supplied).
31. Bare perusal of the language of the provision, along with the
law as laid down by the Hon'ble Apex Court in Celestium,
Mahabir (supra) and Joseph (supra) would show in certain
terms that the right of a Victim to file an Appeal against an
Order of acquittal is on a higher footing than that of a
Complainant. This is for the simple reason, that the Victim,
in essence is a sufferer/aggrieved party of the alleged
offence, who has been conferred with this right by the
legislature, which is not the case for a Complainant.
32. Hence, to contend that a Victim may simply proceed as a
Complainant under Section 378 of the Code would then
render illusory, the very purpose for which an independent
and substantive right of appeal was conferred upon a Victim.
Such an interpretation would dilute the legislative intent
behind introducing a distinct, unqualified appellate remedy
under the proviso to Section 372 of the Code and would fail
to give meaningful effect to that statutory right.
34. Second, as regards the question of "choice" or "election,"
this Court is not persuaded to readily accept (neither would
it be possible for anyone to readily infer) that a person who
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is aware of the statutory right to appeal as a Victim (as an
absolute right) would voluntarily subject himself to the more
taxing requirements of Section 378(4) of the Code by
appealing as a Complainant, i.e., to seek special leave of the
Court for filing the Appeal.
43. A harmonious reading of the provisions therefore requires
that, for the purpose of appellate remedy, a Victim, though a
Complainant in a given case, must proceed under Section
372 of the Code rather than invoking Section 378(4) of the
Code.
56. In the present case, in Section 372 of the Code, the said
Appeal has to be filed before the Sessions Court. The Apex
Court, in the said judgment, has also taken into
consideration that the acquittal would be challenged at the
stage of first appeal before the Sessions Court. The Appeal
would not lie to the High Court.
78. For the foregoing reasons, this Court holds that where an
order of acquittal is rendered by a Magistrate, the statutory
remedy available to the Victim is to institute an appeal
before the Sessions Court in terms of the proviso to Section
372 of the Code, which mandates that such an appeal shall
lie to the court that would ordinarily entertain an appeal
against an order of conviction passed by that Court.
79. In view of the above, it transpires that the Complainant, in a
complaint under Section 138 of the N.I. Act, being a Victim,
has a specific right to appeal under proviso of Section 372 of
the Code to the Court which is immediately superior in
hierarchy i.e., the Sessions Court.
80. In view of the above, the applications/appeals which are
pending before this Court can be disposed of with a direction
to transfer the said application/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 and numbered
accordingly."
4. Therefore, it has been held in the aforesaid judgment that the
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Complainant, in a Complaint under Section 138 of the N.I. Act,
being a Victim, has a specific right to appeal under proviso of
Section 372 of the Code (Section 413 of BNSS) to the Court which
is immediately superior in hierarchy i.e., the Sessions Court. The
applications for leave to appeal/appeals which are pending before
this Court can be disposed of with a direction to transfer the said
application/appeal to the concerned Sessions Court.
5. In the present case also, given the position of law as now settled
and since the Complainant in the present case is also a Victim, there
is no reason for this Court to take any view different from that taken
in Shivsinh Ganpatsinh (supra).
6. In view of the above, this Application and Appeal are 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. The Registry is directed to transfer the entire record of
the case, including the certified copies of the order impugned and
Record and Proceedings, if lying with this Court, to the concerned
lower Appellate Court, forthwith. It is open for the parties to agitate
all the grievances before the concerned Court afresh. It is clarified
that this Court has not gone into the merits of the matter at this stage.
(SANJEEV J.THAKER,J)
URIL RANA
