IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL REVISION APPLICATION (AGAINST ACQUITTAL -

NEGOTIABLE INSTRUMENT ACT) NO. 537 of 2026 ==========================================================

MEHULBHAI KISHORBHAI JOSHI Versus KALPESHBHAI ROHITBHAI PATEL (J.K.PROPERTIES) & ANR.

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Appearance:

MR MILIND D PRAVASI(13183) for the Applicant(s) No. 1 MR PIYUSH C JADUGAR(3178) for the Applicant(s) No. 1 MR. KAMAL VAGHELA(15518) for the Applicant(s) No. 1 MS JYOTI BHATT APP for the Respondent(s) No. 2 ==========================================================

CORAM:HONOURABLE MS. JUSTICE GITA GOPI Date : 16/03/2026

ORDER

1. The present application is by the original complainant who had filed the complaint before the learned 2^nd Additional Chief Judicial Magistrate, Gandhinagar under Section 138 of the Negotiable Instruments Act wherein the accused was sentenced to undergo one year simple imprisonment and was also ordered to pay the cheque amount as compensation.

2. Against the judgment of conviction and sentence, the accused move the appellate Court. The learned 7^th Additional Sessions Judge, Gandhinagar in Criminal Appeal No.311 of 2024 acquitted the accused. Aggrieved by the said acquittal, the original complainant has move this Court by filing the revision application.

3. Here, the matter which requires consideration is the provision under Section 378 of the Cr.PC, which is corresponding Section 419 under Bhartiya Nyaya Sanhita, 2023. Section 419 refers to appeal in case of acquittal.

4. The Hon'ble Supreme Court in regard to section 378 Cr.P.C. and section 478(4) Cr.P.C., in case of Mallikarjun Kodagali (Dead) Represented Through Legal Representatives Vs. State of Karnataka And Others, reported in (2019) 2 SCC 752, in paragraph nos.84 and

90 held as under:

“84. Chapter XXIX with of the CrPC deals with appeals. Appeals against acquittal are governed by Section 378 of CrPC. As per sub-section (1) of this section only a District Magistrate or the State as may be is entitled to case the direct the Public Prosecutor to file an appeal. Sub-section (2) deals with cases investigated under the Delhi Special Police Establishment Act, 1946 and in these cases the Central Government may also direct the Public Prosecutor to file an appeal. I am concerned mainly with sub-section (3) of Section 378 of CrPC, which provides that no appeal to the High Court either under sub- section (1) a case or sub-section (2) shall be entertained except with the leave of the High Court. Sub-section (4) deals with appeals filed by the complainant in case the order of acquittal is passed in instituted upon a complaint. In such cases if the appeal has to be filed in the High Court it cannot entertained unless the High Court grants special leave to appeal from the order of acquittal. Sub-section (5) provides the limitation filing the petition for grant of special leave to appeal in terms of sub- section (4). Sub-section be for (6) lays down that in case the application for special leave to appeal filed by a complainant under sub- section (4) is refused then no appeal from that order of acquittal shall lie under sub- section (1) or under sub-section (2). An analysis of Section 378 of CrPC clearly shows that the CrPC envisaged and granted a predominant role to the State. It was the State alone which was entitled to file an appeal. The only exception was in complaint cases where the complainant could file an appeal. He also had to seek special leave to appeal in case the appeal lay to the High Court."

90. Adverting to sub-section (4) of Section 378 of CrPC, if an order of acquittal is passed on a case instituted upon a complaint then the High Court before entertaining an appeal by the complainant must grant special leave to appeal. The expression "Special leave to appeal" has no different meaning than the expression "leave to appeal" and it appears to me that the word "special" has been added only to distinguish "leave t