DHARMESHBHAI KANTIBHAI PATELversusSTATE OF GUJARAT
- Disposal
- 27-WITHDRAWN @ ADM.STAGE
- Bench
- SANJEEV THAKER
Holding
The Court permitted withdrawal of the application and granted liberty to file an appropriate appeal within four months, without counting the elapsed time as a 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, relying on a recent Gujarat High Court decision (Shivsinh Ganpatsinh Solanki v. State of Gujarat) which affirmed the complainant’s right to appeal under the proviso to Section 372 of the CrPC (Section 413 of the BNSS). The Court granted permission to withdraw the application, disposed of it as withdrawn, and allowed the applicant to file a proper appeal before the Sessions Court within four months, stating that the time spent on the present application would not be counted as delay. The order also directed that the record be remitted to the concerned court and that a certified copy of the impugned judgment be provided if requested. No merits of the original acquittal were examined.
Issues considered
- The applicant’s right to withdraw the leave‑to‑appeal application in view of the recent judgment clarifying appeal rights under Section 372 CrPC.
- Whether the period spent filing the withdrawn application should be treated as a delay for filing a subsequent appeal under Section 372.
- The existence of a specific right of a complainant in a Section 138 NI Act case to appeal an acquittal to the Sessions Court.
Legislation cited
- Code of Criminal Procedure, 1973s. 372, s. 378(4)
- Negotiable Instruments Act, 1881s. 138
Subjects
Judgment
R/CR.MA/5782/2023 ORDER DATED: 16/01/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 5782 of
2023
In R/CRIMINAL APPEAL/821/2023
With
R/CRIMINAL APPEAL NO. 821 of 2023
==========================================================
DHARMESHBHAI KANTIBHAI PATEL
Versus
STATE OF GUJARAT & ORS.
==========================================================
Appearance:
MR JIGAR D DAVE(6528) for the Applicant(s) No. 1
MS MEGHA CHITALIYA, APP for the Respondent No.1 - State
UTSAV C SHETH(7886) for the Respondent(s) No. 2,3
==========================================================
CORAM:HONOURABLE MR.JUSTICE SANJEEV J.THAKER
Date : 16/01/2026
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
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R/CR.MA/5782/2023 ORDER DATED: 16/01/2026
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 (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.
Page 2 of 3
R/CR.MA/5782/2023 ORDER DATED: 16/01/2026
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. It is clarified that this Court has not gone into
the merits of the matter at this stage.
(SANJEEV J.THAKER,J)
M.H. DAVE
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 16/01/2026 15:43:18
Page 3 of 3
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