Bombay High Court

Ms Privi Life Sciences Pvt Ltd Through its authorised representative Vicky Ramesh NichaniversusMs Bhagylaxmi Agro Services

Decided: 31 July 2026
Disposal: Disposed Off
Bench: M M SATHAYE

Holding

The Court held that the applicant had prosecuted the case diligently and that the lower court’s finding of non‑prosecution was incorrect, thereby granting leave to appeal.

Summary

Ms Privi Life Sciences Pvt Ltd filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against Ms Bhagylaxmi Agro Services and others. The lower court dismissed the complaint on the ground of non‑prosecution, holding that the complainant had not filed an affidavit of examination‑in‑chief. The applicant contended that the affidavit was filed on 15‑12‑2021 and that the case was diligently prosecuted from December 2022 to June 2024, with only two brief absences in October‑November 2024. The High Court examined the roznama and the affidavit, finding the lower court’s reasoning erroneous. Consequently, the Court granted leave to appeal, admitted the appeal and waived service of notice. The matter was left open for the applicant to move the appeal for final disposal.

Issues considered

Whether the dismissal of the complaint for alleged non‑prosecution was justified in view of the record.
Whether an affidavit of examination‑in‑chief had been filed as claimed by the applicant.
Whether the applicant had prosecuted the case diligently enough to preclude a dismissal for non‑prosecution.

Legislation cited

Negotiable Instruments Act, 1881 — s. 138

Subjects

Section 138 NI Act
non‑prosecution
leave to appeal
affidavit of examination‑in‑chief
criminal procedure
diligent prosecution

Judgment

                                                                       21-ALP-33-2025.doc



                                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                        CRIMINAL APPELLATE JURISDICTION

                            APPLICATION FOR LEAVE TO APPEAL (PVT.) NO. 33 OF 2025

                   Ms Privi Life Sciences Pvt Ltd Through Its                ...Applicant
                   Authorised Representative Vicky Ramesh Nichani
                               Versus
                   Ms Bhagylaxmi Agro Services and Ors.                      ...Respondents
SNEHA
NITIN                                                 ****
CHAVAN
Digitally signed   Mr. Irfan A. Shaikh for the Applicant.
by SNEHA NITIN
CHAVAN
Date: 2026.07.31
                   Ms. Manisha Tidke, APP for Respondent/State.
19:38:55 +0530
                   None for Respondent Nos.1 and 2.
                                                      ****
                                             CORAM : M.M. SATHAYE, J.
                                                DATE : 31st JULY, 2026

                   P.C. :


                   1.             Heard learned Counsel for the Applicant.
                   2.             Nobody appears for the Respondent despite service. Office
                   notes indicates that both Respondent Nos. 1 and 2 are served.
                   3.             The application is filed by the complainant seeking leave to
                   file appeal against an order dated 27.12.2024 passed by 4 th Joint Civil
                   Judge, Junior Division and Judicial Magistrate First Class,Belapur, Navi
                   Mumbai District Thane below Exh.1 in S.C.C. No. 61 of 2021. By the
                   said order, the complaint filed by the Applicant under Section 138 of the
                   Negotiable Instruments Act, 1881 is dismissed for non prosecution, in
                   result, discharging the Respondent / accused from the offence.
                   4.             Learned Counsel for the Applicant, inviting this Court’s
                   attention to roznama as well as a copy of affidavit of examination in
                   chief submitted that the Applicant was diligently prosecuting the said
                   case and the reason in the impugned order is contrary to the record. He
                   submitted that Respondent accused appeared in the Court and filed


                   Sneha Chavan                                                             1
                                                      21-ALP-33-2025.doc



application for cancellation of warrant / filing P.R. bond, when the
matter was placed for recording plea of the accused, the accused did not
appear.
5.             None appears for Respondent Nos. 1 and 2 accused.
6.             It is seen from the record produced before this Court that the
affidavit of examination in chief of the complainant was recorded below
Exh. 6 on 15.12.2021 and therefore the observations in the impugned
order is actually incorrect about non filing of affidavit of examination-
in-chief. So also, perusal of the roznama indicates that from December
2022 till June 2024, the complainant or his Advocate was diligently
prosecuting the matter. On two occasions of October 2024 and
November 2024, the complainant and his Advocate were absent.
However, in December 2024, the impugned order is passed dismissing
the complaint for non prosecution.
7.             Considering the above, case for grant of leave is made out.
The application is allowed. The Applicant is permitted to file appeal
challenging the order dated 27.12.2024.
8.             Appeal is admitted. Learned APP waives service.
9.             Liberty to move the appeal for final disposal.




                                              (M.M. SATHAYE, J.)




Sneha Chavan                                                               2

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