ILABEN VISHNUBHAI PATELversusSTATE OF GUJARAT
- Disposal
- 27-WITHDRAWN @ ADM.STAGE
- Bench
- SANJEEV THAKER
Holding
The Court allowed the withdrawal of the leave‑to‑appeal application and granted liberty to file a fresh appeal, holding that the time spent on the withdrawn application will not be counted as delay.
Summary
The complainant filed an application under Section 378(4) of the CrPC seeking leave to appeal against the trial court's acquittal of the accused under Section 138 of the Negotiable Instruments Act. The applicant later sought to withdraw the application in light of a recent Gujarat High Court decision (Shivsinh Ganpatsinh Solanki v. State of Gujarat) which affirmed the complainant's specific right to appeal under the proviso to Section 372 of the CrPC. The Court granted permission to withdraw the application and the connected appeal, ordering that the time spent on the present appeal not be counted as delay for filing a fresh appeal within four months. The order also directed that the record be remitted to the appropriate court and clarified that no merits of the original case were considered.
Issues considered
- The effect of the recent Gujarat High Court decision on the complainant's ability to withdraw a pending leave-to-appeal application.
- Whether the period spent filing the present appeal can be excluded from the limitation period for filing a fresh appeal under Section 372 CrPC.
- The existence of a specific right of a complainant in a Section 138 NI Act case to appeal to the Sessions Court.
Legislation cited
- Code of Criminal Procedure, 1973s. 372, s. 378(4), s. 413
- Negotiable Instruments Act, 1881s. 138
Subjects
Judgment
R/CR.MA/17257/2025 ORDER DATED: 30/01/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 17257
of 2025
In F/CRIMINAL APPEAL/33016/2025
With
F/CRIMINAL APPEAL NO. 33016 of 2025
==========================================================
ILABEN VISHNUBHAI PATEL
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR ARJUN M PADHIYAR(10586) for the Applicant(s) No. 1
MR YUVRAJ BRAHMBHATT, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 30/01/2026
ORAL ORDER
1. This application is filed under Section 378(4) of
the Code of Criminal Procedure, 1973 (“Code or CrPC”) by
the Complainant seeking leave to appeal to challenge the
judgment and order impugned passed by the learned trial
Court, whereby the Ld. Trial Court had acquitted the
Respondent/s-Accused of charge under Section 138 of the
Negotiable Instruments Act, 1881 (hereinafter referred to as
the `NI Act’ for short).
2. Learned advocate for the appellant seeks
permission to withdraw this application, in view of the latest
decision rendered by this Court in the case of Shivsinh
Ganpatsinh Solanki V/s State of Gujarat & Anr. being
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R/CR.MA/17257/2025 ORDER DATED: 30/01/2026
Criminal Miscellaneous Application Nos. 12753 of 2019 with
12908 of 2019 on 23.12.2025, 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 etc. reported in 2025 INSC
804, has observed and held that the Complainant, in a
complaint under Section 138 of the N.I. Act, being a Victim,
has a specific right to appeal under proviso of Section 372 of
the Code (Section 413 of BNSS) to the Court which is
immediately superior in hierarchy i.e., the Sessions Court,
with a liberty to file appropriate appeal under Section 372 of
the Code (Section 413 of BNSS) and prayed that the period
that may be consumed in filing the present appeal, may not
be counted as delay in filing such appeal before the
concerned Court.
3. Permission as prayed for is granted. The present
application as well as the connected appeal are disposed of
as withdrawn, with a liberty to file appropriate appeal/s
before the concerned Court, within a period of four months
from the date of this order. Record and proceedings, if lying
with this Court, be remitted back to the concerned Court
forthwith.
4. It is clarified that the period that may be
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R/CR.MA/17257/2025 ORDER DATED: 30/01/2026
consumed in filing the present appeal may not be counted as
delay in filing such appeal before the concerned Court.
Moreover, the certified copy of the impugned judgment, be
handed over to the applicant/appellant, as per Rules, if asked
for. It is open for the parties to agitate all the grievances
before the concerned Court afresh.
5. It is clarified that this Court has not gone into
the merits of the matter at this stage.
(SANJEEV J.THAKER,J)
SRILATHA
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: SRILATHA VENKATARAO UPADHYAYULA(HC00185), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 30/01/2026 15:26:15
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