NITYANAND JUGALCHARAN NAYAKversusSTATE 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- 27-WITHDRAWN @ ADM.STAGE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granted liberty to file an appropriate appeal before the Sessions Court within four months, with the time spent on the withdrawn application not counted as delay.
Summary
The complainant filed an application under Section 378(4) of the CrPC seeking leave to appeal against a 2022 acquittal of the accused under Section 138 of the Negotiable Instruments Act. The applicant’s counsel requested to withdraw the application in view of a recent Gujarat High Court decision (Shivsinh Ganpatsinh Solanki v. State of Gujarat) which clarified that a complainant‑victim has a specific right to appeal under the proviso to Section 372 of the CrPC to the Sessions Court, and that time spent filing the present appeal should not be counted as delay. The court granted permission to withdraw the application, disposed of it as withdrawn, and allowed the applicant a four‑month window to file an appropriate appeal, expressly stating that the elapsed period will not be treated as a limitation breach. The order also directed the record to be remitted to the concerned court and urged speedy disposal of any subsequent appeal. The judgment thus facilitates the complainant’s right to a proper appeal without penalising the delay incurred in the withdrawn application.
Issues considered
- What is the appropriate forum and statutory provision for a complainant‑victim to appeal an acquittal under Section 138 of the NI Act?
- Whether the period spent filing the withdrawn leave‑to‑appeal application can be excluded from the limitation period for filing a fresh appeal under Section 372 of the CrPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 372, s. 378(4)
- Negotiable Instruments Act, 1881s. 138
Subjects
Judgment
R/CR.MA/4467/2023 ORDER DATED: 08/01/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 4467 of
2023
In R/CRIMINAL APPEAL/513/2023
With
R/CRIMINAL APPEAL NO. 513 of 2023
==========================================================
NITYANAND JUGALCHARAN NAYAK
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR VAIBHAV N SHETH(5337) for the Applicant(s) No. 1
MR YUVRAJ BRAHBHATT, APP for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 08/01/2026
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 dated 21.05.2022 passed in Criminal
Case No.619 of 2015 by the learned Judicial Magistrate, First
Class, Dhansura, Aravalli, 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). It is noted that this
Court has already condoned the delay in filing the appeal.
2. Learned advocate for the appellant seeks
permission to withdraw this application, in view of the latest
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R/CR.MA/4467/2023 ORDER DATED: 08/01/2026
decision rendered by this Court in the case of Shivsinh
Ganpatsinh Solanki V/s State of Gujarat & Anr. being
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 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 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.
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R/CR.MA/4467/2023 ORDER DATED: 08/01/2026
4. It is clarified 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.
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 grievance
before the concerned Court afresh.
5. Considering that the matter has been pending for
considerable time, the learned lower Appellate Court is
required to make endeavour to dispose of the matter, if so
filed, as expeditiously as possible.
(SANJEEV J.THAKER,J)
M.H. DAVE/166
Original copy of this order has been signed by the Hon'ble Judge.
Digitally signed by: MAHESHKUMAR HASMUKHLAL DAVE(HC00193), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 09/01/2026 17:52:12
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