Bombay High Court

PATEL POLYMERS PVT. LTD.versusSTATE OF MAHARASHTRA

Decided: 21 August 2026
Disposal: Disposed Off

Holding

The complainant may withdraw the leave application and is entitled to liberty to file an appeal under the proviso to Section 372 CrPC.

Summary

The applicant, Patel Polymers Pvt. Ltd., a complainant under Section 138 of the Negotiable Instruments Act, sought to withdraw its leave‑to‑appeal application and obtain liberty to file an appeal under the proviso to Section 372 of the Criminal Procedure Code, relying on the Supreme Court’s decision in Celestium Financial v. Gnanasekaran. The respondent accused opposed, contending that the parallel civil suit and the magistrate’s acquittal barred a fresh criminal appeal. The Court examined the Supreme Court’s pronouncement that a complainant is a victim entitled to appeal either under Section 372 or Section 378 CrPC and found no statutory impediment. Consequently, the Court permitted the withdrawal of the present application and granted liberty to file an appeal, leaving the question of condoning delay to the appellate court. The application was therefore disposed of as withdrawn with liberty to appeal with delay‑condonation application.

Issues considered

Whether the complainant under Section 138 NI Act may withdraw a leave‑to‑appeal application and still be granted liberty to file an appeal under the proviso to Section 372 CrPC.
Whether the existence of a parallel civil suit and the magistrate’s acquittal bar the complainant from preferring a criminal appeal.

Legislation cited

Code of Criminal Procedure, 1973 — s. 372, 378
Negotiable Instruments Act, 1881 — s. 138

Subjects

Section 138 NI Act
CrPC Section 372
CrPC Section 378
complainant rights
appeal under NI Act
withdrawal of leave application
delay condonation
parallel civil proceedings

Judgment

                                                        7-ALP-170-2016.doc




           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CRIMINAL APPELLATE JURISDICTION

     APPLICATION FOR LEAVE TO APPEAL (PVT.) NO. 170 OF 2016

Patel Polymers Pvt. Ltd.                       ....Applicant
       V/s
State Of Maharashtra and Anr.                  ....Respondents

                                 ***
Mr. Yogendra M. Kanchan for the Applicant.
Ms. Manisha R. Tidke for Respondent No.1-State.
Mr. R.P. Joshi for Respondent No. 2.
                                 ***

                                      CORAM : M.M. SATHAYE, J.
                                      DATE      : 21st AUGUST, 2026
P.C. :

1.       The Applicant is complainant challenging an order of acquittal
arising out of proceedings under Section 138 of the Negotiable
Instruments Act, 1881 (‘NI Act’, for short).

2.       Learned counsel for the Applicant seeks permission to
withdraw the leave application with liberty to file appeal as per
proviso to Section 372 of the Criminal Procedure Court, 1973 (‘CrPC’,
for short). He relies upon judgment in Celestium Financial Vs. A.
Gnanasekaran Etc. 2025 SCC OnLine SC 1320.

3.       Learned counsel for Respondent No.2-org. accused has
opposed the request contending inter alia that both the Magistrate as
Civil Court who heard the Applicant’s suit for recovery of money
arising out of same transaction, have applied their mind and Criminal
Court has acquitted Respondent No.2 and Civil Court has dismissed

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                                                     7-ALP-170-2016.doc




the suit. He submitted that if permission is granted with leave to file
appeal, it will amount to one more round of litigation where
Respondent No.2-accused will have to face fresh litigation.

4.      Nothing is pointed out either from provisions of law or from
the judgment of Celestium Financial (Supra) which can be construed
as a bar against the Applicant-complainant exercising option of filing
appeal. In paragraph No.7.9 of the said judgment, the Hon’ble
Supreme Court has clearly held that the complainant under Section
138 of NI Act is a victim who must also have right to prefer an appeal
and in paragraph No.9 of the said judgment, it is also clearly held
that in such case, an appeal can be preferred ‘either under the proviso
to Section 372’ or ‘378 of CrPC’ by such victim. It is therefore, clear
that the Applicant-complainant has an option either to proceed with
the present leave application or prefer an appeal.

5.      Considering the said legal position, the Applicant is permitted
to withdraw the present application with liberty to file appeal.

6.      The contentions regarding time spent in prosecuting present
leave application on the aspect of delay condonation while filing the
proposed appeal, will have to be decided by the Appellate Court in
accordance with law. All contentions in that regard are kept open.

7.      Subject to above, the application is disposed of as withdrawn
with liberty to file appeal with delay condonation application.


                                            (M.M. SATHAYE, J.)


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