The Gujarat High Court has directed that a criminal appeal arising from a cheque dishonour case be transferred to the Sessions Court, holding that the complainant has the right to pursue the appeal as a "victim" under the law. The Court relied on a recent Supreme Court judgment that clarified the appellate remedy available in cases under Section 138 of the Negotiable Instruments Act.
Background of the Case
The case, Aashish Jayantilal Jariwala, Proprietor of Padmavati Investments v. State of Gujarat & Another, arose from an appeal challenging the acquittal of the accused by the 15th Additional Chief Judicial Magistrate, Surat, on January 17, 2019, in proceedings under Section 138 of the Negotiable Instruments Act.
The appeal had initially been filed before the Gujarat High Court under Section 378 of the Code of Criminal Procedure, which deals with appeals against acquittal. During the hearing, both sides referred to the Supreme Court's decision in Celestium Financial v. A. Gnanasekaran, which clarified that a complainant in a cheque dishonour case is also a "victim" and therefore has a statutory right to file an appeal before the Sessions Court under the proviso to Section 372 of the Code.
Court's Observations
Justice Hemant M. Prachchhak noted that the legal position had changed following the Supreme Court's ruling. Referring to the apex court's reasoning, the High Court observed that the complainant in a cheque dishonour prosecution is the person directly affected by the alleged offence and is therefore entitled to exercise the victim's right of appeal.
Quoting the Supreme Court, the bench noted:
"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 commences with the filing of a complaint, he does not cease to be a victim."
The Court also took note of the submission made by the Additional Public Prosecutor that the issue is presently under consideration before a larger Bench of the Supreme Court. However, it observed that until any different view is taken, the existing judgment remains applicable.
Court's Decision
Without examining the merits of the acquittal, the Gujarat High Court disposed of the appeal with directions to transfer the entire matter to the concerned Sessions Court.
The Court ordered that the appeal be treated as one filed under the proviso to Section 372 of the Code of Criminal Procedure (corresponding to Section 413 of the Bharatiya Nagarik Suraksha Sanhita), be renumbered accordingly, and that notices be issued to the parties after transfer.
The Registry was directed to forward the complete case record, including certified copies of the impugned judgment and all proceedings, to the lower appellate court. Considering that the litigation has remained pending for several years, the High Court requested the Sessions Court to make an endeavour to decide the appeal as expeditiously as possible.
It clarified that it had not expressed any opinion on the merits of the dispute.
Case Details
Case Title: Aashish Jayantilal Jariwala, Proprietor of Padmavati Investments v. State of Gujarat & Another
Case Number: R/Criminal Appeal (Against Acquittal) No. 735 of 2019
Judge: Justice Hemant M. Prachchhak
Decision Date: June 25, 2026
