The High Court of Delhi, in an order dated November 6, 2025, has affirmed the legal position that a complainant in a Section 138 Negotiable Instruments (NI) Act case qualifies as a “victim” under the Code of Criminal Procedure (Cr.P.C.). Consequently, any appeal against an order of acquittal in such a case lies before the Sessions Court under the proviso to Section 372 Cr.P.C., not before the High Court as a petition for special leave under Section 378(4) Cr.P.C.
Justice Manoj Kumar Ohri dismissed a petition for leave to appeal as withdrawn, directing that the appeal be transferred to the concerned Sessions Court for adjudication. The court based its order on a recent Supreme Court decision that clarified this procedural and jurisdictional point of law.
Background of the Case
The matter, Jai Khera Vs. Suresh Kumar Jain (CRL.L.P. 298/2025), was brought before the High Court by the petitioner, Jai Khera. The petitioner was seeking leave to appeal under Section 378(4) Cr.P.C. against a judgment dated March 1, 2025. That judgment, passed by the JMFC, NI Digital Court No. 01, West District, Tis Hazari Courts Complex, Delhi, had acquitted the respondent, Suresh Kumar Jain, of an offence under Section 138 of the NI Act (cheque dishonour).
Court’s Analysis and Reliance on Supreme Court Precedent
During the proceedings, the petitioner’s counsel, Ms. Anshul Garg, drew the High Court’s attention to the recent Supreme Court decision in Celestium Financial vs A. Gnanasekaran etc. (2025 SCC OnLine SC 1320).
Justice Ohri’s order heavily relied on the principles laid down in this Supreme Court judgment. The order noted that the Supreme Court had “held that the complainant under Section 138 NI Act, who suffers financial loss and injury on account of the dishonour of cheque, would qualify as a victim within the meaning of Section 2(wa) Cr.P.C.”
The High Court order quoted the Supreme Court’s reasoning verbatim:
“7.7 In the context of offences under the Act, particularly under Section 138 of the said Act, the complainant is clearly the aggrieved party who has suffered economic loss and injury due to the default in payment by the accused… In such circumstances, it would be just, reasonable and in consonance with the spirit of the CrPC to hold that the complainant under the Act also qualifies as a victim… Consequently, such a complainant ought to be extended the benefit of the proviso to Section 372, thereby enabling him to maintain an appeal against an order of acquittal in his own right without having to seek special leave under Section 378(4) of the CrPC.”
The Supreme Court had further clarified, as cited in the order, that “under Section 138 of the Act both the complainant as well as the victim are one and the same person.”
The Delhi High Court order explained the impact of this clarification. It contrasted the “rigours of Section 378(4) Cr.P.C.,” which require a complainant to seek special leave to appeal from the High Court, with the rights available to a “victim” under the proviso to Section 372 Cr.P.C.
The order stated, “Section 372 is a self-contained and independent provision which is not to be read conjointly with any other provision, including Section 378 Cr.P.C.” It further noted that this proviso gives the victim an “individual right to appeal against an order of acquittal” without needing special leave, and, significantly, “provides an additional forum of challenge.”
Identifying the correct forum, the High Court order observed that Section 143 of the NI Act specifies that offences under the chapter are tried by a Judicial Magistrate of First Class or a Metropolitan Magistrate. Therefore, the order concluded, “An appeal against conviction, and thus an appeal preferred by the victim, would lie before the Sessions Court.”
The court stated its conclusion plainly: “In light of the Supreme Court’s recent clarification of the legal position, it is now evident that the petitioner, being the complainant under Section 138 of NI Act, is also entitled to file an appeal against the impugned judgment of acquittal before the Sessions Court, since he is considered to be a victim.”
The order also noted that hearing the appeal in the High Court “could deprive the parties of an available forum i.e., this Court, for further challenge.” This legal position, the order mentioned, has been adopted by Co-ordinate Benches of the Delhi High Court and several other High Courts, including those in Bombay, Karnataka, Chhattisgarh, Madhya Pradesh, Gujarat, Gauhati, Allahabad, and Himachal Pradesh, which have “relegated the parties to contest their case before the Sessions Court.”
Decision and Directions
In view of the established legal position, the counsel for the petitioner sought leave to withdraw the petition, with liberty to approach the Sessions Court.
The High Court allowed the request, dismissing the petition as withdrawn. It directed “that the accompanying appeal be transferred to the concerned Appellate Court of Sessions and be considered as an appeal under the proviso to Section 413 of BNSS (formerly Section 372 of Cr.P.C.) and numbered accordingly.”
The Registry was ordered to transfer the entire case record, including the Trial Court Record, to the concerned Principal District & Sessions Judge, with the matter scheduled to be listed there on November 29, 2025.
The High Court made it clear that it “has not made any observations as to the merits of the case and all rights and contentions of the parties are left open to be agitated before the concerned Court.”
