Bombay High Court

Usha Kiran Enterprises Pvt LtdversusV N Timber Traders

Decided: 3 September 2026
Disposal: Disposed Off

Holding

The application for leave to appeal is disposed as withdrawn, with liberty to file an appeal before the Sessions Judge, and the time spent on the application is to be excluded from the limitation period.

Summary

The applicant, Usha Kiran Enterprises Pvt Ltd, was the complainant in a criminal case under Section 138 of the Negotiable Instruments Act, 1881, where the trial court dismissed the complaint, resulting in the acquittal of the respondent. The applicant sought leave to appeal under the proviso to Section 372 of the Code of Criminal Procedure, 1973, relying on the Supreme Court’s decision in Celestium Financial Ltd. v. A. Gnanasekaran (2025). The High Court considered the applicant’s request and, noting that the leave application was filed within time, disposed of the application as withdrawn while granting liberty to file an appeal before the Sessions Judge. The Court further directed that the period spent prosecuting the leave application be excluded from the limitation period under the Limitation Act, 1963 and Section 470 of the CrPC. Consequently, the applicant may pursue an appeal within four weeks, with the time already spent not counted against the limitation period.

Issues considered

Whether the applicant is entitled to file an appeal under the proviso to Section 372 of the CrPC after the dismissal of a complaint under Section 138 of the Negotiable Instruments Act.
Whether the leave application can be treated as withdrawn while preserving the applicant’s right to file a substantive appeal before the Sessions Court.
Whether the time spent on the leave application can be excluded from the limitation period under the Limitation Act, 1963 and Section 470 of the CrPC.

Legislation cited

Code of Criminal Procedure, 1973 — s. 372, 470
Limitation Act, 1963
Negotiable Instruments Act, 1881 — s. 138

Subjects

Section 138 NI Act
Appeal under Section 372 CrPC
Limitation period
Leave application withdrawal
Criminal procedure

Judgment

                                                                        4-ALP-220-2024 .doc



                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CRIMINAL APPELLATE JURISDICTION

                            APPLICATION FOR LEAVE TO APPEAL(PVT.) NO. 220 OF 2024

                      Usha Kiran Enterprises Pvt Ltd                         ...Applicant
NAVNATH
SITARAM                         Versus
WAGHMARE
                      V N Timber Traders & Anr.                              ...Respondents
Digitally signed by
NAVNATH
SITARAM
WAGHMARE
Date: 2026.09.03                                       ****
17:58:31 +0530
                      Mr. Mandar Patil a/w Ms.Mamta Magare i/b M/s Bagkar & Co. for the
                      Applicant.
                      Mr. Niket Harit a/w M. Kashif Wahedna i/b Manoj Harit & Co., for the
                      Respondent No.1.
                      Ms. M.R. Tidke, APP for the Respondent/State.
                                                       ****
                                                CORAM : M.M. SATHAYE, J.
                                                 DATE : 03rd SEPTEMBER, 2026
                      P.C. :

                      1.       Applicant is complainant under proceedings arising out of Section
                      138 of the Negotiable Instruments Act,1881. By the impugned order
                      dated 24.07.2024, the complaint is dismissed thereby resulting in
                      acquittal of the Respondent No.1-accused.
                      2.       Learned counsel for the Applicant, at the outset, states on
                      instructions that in view of law laid down by Hon’ble Supreme Court in
                      Case of M/s. Celestium Financial Vs. A. Gnanasekaran Etc., 2025 SCC
                      OnLine SC 1320, the Applicant wishes to file appeal under proviso to
                      Section 372 of the Code of Criminal Procedure, 1973 ('CrPC' for short).
                      3.       Considering paragraphs 7.9, 9 and 10 of the aforesaid Judgment,
                      the Applicant has an option to proceed with the application or to file an
                      appeal.

                      4.       Hence, considering the request made, the Application is disposed



                      Navnath Waghmare                                                        1
                                                 4-ALP-220-2024 .doc



of as withdrawn, with liberty reserved to the Applicants to file appeal
before the concerned Sessions Judge.

5.         According to the record, present leave application was filed in
time. Therefore, if the appeal is filed before the concerned Sessions
Court within a period of four weeks from today, time spent in
prosecuting this application shall be considered for exclusion in
accordance with law, including the Limitation Act, 1963 and the
provision under Section 470 of CrPC.



                                               (M.M. SATHAYE, J.)




Navnath Waghmare                                                       2

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