IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1431 of 2017 [On note for speaking to minutes of order dated 02/02/2026 in R/CR.A/1431/2017 ]

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GUJARAT STATE SEEDS CORPORATION LTD.

Versus KISHAN BROTHERS, THRO' ZALA BHUMITSINH BHAVANSINH & ANR.

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Appearance:

MR AR THACKER(888) for the Appellant(s) No. 1 MR SANDEEP R LIMBANI(5977) for the Opponent(s)/Respondent(s) No. 1 MS SHRUTI PATHAK, APP for the Opponent(s)/Respondent(s) No. 2 ==========================================================

CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER Date : 02/02/2026

ORAL ORDER

1. The earlier order dated 2.2.2026 is passed inadvertently. Hence, the earlier order dated 2.2.2026 is recalled and the following order is passed.

2. This is a Criminal Appeal filed under Section 378 of the Code of Criminal Procedure, 1973 (“Code or CrPC”) by the Complainant against the judgment and order dated 16.5.2017 passed in Criminal Case No.1817 of 2013 by learned 2^nd Additional Chief Judicial Magistrate, Rajkot, 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).

3. Heard learned advocates for the parties.

4. Before entering into the merits of this case, this Court deems it 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:

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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.

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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 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 c