CHANDUBHAI GOBARBHAI ASODARIA v. STATE OF GUJARAT ANR

ORDER

#1. The present appeal is (cid:15)led by the appellant against the judgment and order dated 20.03.2019 passed by the learned 3rd Additional Chief Judicial Magistrate, Surat (hereinafter be referred to as “the Trial Court”), in Criminal Case No. 25899 of 2014 whereby the Trial Court had acquitted the respondent - accused.

#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 wherein the Hon’ble Supreme Court has held that the original complainant to be considered as a victim of the o2ence under Section 138 of the Act and, therefore, the complainant has right to (cid:15)le an appeal under Section 372 of R/CR.A/1446/2019 ORDER DATED: 07/08/2026 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 speci(cid:15)c right to (cid:15)le 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. 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 (cid:15)nal outcome of the reference. R/CR.A/1446/2019 ORDER DATED: 07/08/2026

#6. 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 o(cid:16)ence 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 o(cid:16)ence under the penal law or a person who is deemed to have committed an o(cid:16)ence under Section 138 of the Act. Symmetrical to a victim of an o(cid:16)ence, a victim of a deemed o(cid:16)ence 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 o(cid:16)ence or imposing an inadequate compensation. When viewed from the perspective of an o(cid:16)ence under any penal law or a deemed o(cid:16)ence under Section 138 of the Act, the right to *le 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 *le an appeal by a victim, provided the circumstances which enable such a victim to *le 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 *ling 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 *le 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 su(cid:16)ered the impact of the o(cid:16)ence committed by a person who is charged of the o(cid:16)ence, namely, the accused, whose cheque has been dishonoured. Secondly, the right of a victim of a crime must be placed on par R/CR.A/1446/2019 ORDER DATED: 07/08/2026 with the right of an accused who has su(cid:16)ered 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 *t to insert the proviso to sub-section 372 without mandating any condition precedent to be ful*lled by the victim of an o(cid:16)ence, 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 *ling 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 o(cid:16)ence to prefer an appeal on the grounds mentioned therein as compared to a complainant. Fifthly, the involvement of the State in respect of an o(cid:16)ence under Section 138 of the Act is conspicuous by its absence. This is because the complaint *led 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 o(cid:16)ence tried as a criminal o(cid:16)ence. 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 de*nition of victim under Section 2(wa) of the CrPC.”

#7. 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 R/CR.A/1446/2019 ORDER DATED: 07/08/2026 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 certi(cid:15)ed copies of the order impugned and record & proceedings, if lying with this Court, to the concerned lower Appellate Court, forthwith.

#8. Considering that the matter has been pending for considerable time, the lower Appellate Court is required to make endeavour to dispose of the matter as expeditiously as possible. It is clari(cid:15)ed that this Court has not gone into the merits of the matter at this stage. SURESH SOLANKI (HEMANT M. PRACHCHHAK,J) Original copy of this order has been signed by the Hon'ble Judge.