DHARMESHBHAI KANTIBHAI PATELversusSTATE OF GUJARAT
- Disposal
- 27-WITHDRAWN @ ADM.STAGE
- Bench
- SANJEEV THAKER
Holding
The Court permitted the withdrawal of the application and ordered it disposed as withdrawn, granting the complainant liberty to file a proper appeal within four months without the elapsed period being counted as delay.
Summary
The complainant filed an application under Section 378(4) of the CrPC seeking leave to appeal the trial court’s 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 affirmed the complainant’s right to appeal under the proviso to Section 372 of the CrPC. The Court granted permission to withdraw, disposed of the application as withdrawn, and allowed the complainant to file a proper appeal before the Sessions Court within four months, stating that the time spent on the present application would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 clarified that no merits of the original criminal case were examined. The certified copy of the impugned judgment may be provided to the applicant upon request.
Issues considered
- The propriety of allowing the withdrawal of the leave‑to‑appeal application under Section 378(4) CrPC.
- Whether the period spent filing the present application can be excluded from the limitation period for filing an appeal under Section 372 CrPC.
- The complainant’s statutory right to appeal an acquittal under Section 138 NI Act pursuant to the proviso to Section 372 CrPC.
Legislation cited
- Code of Criminal Procedure, 1973s. 372, s. 378(4), s. 413
- Negotiable Instruments Act, 1881s. 138
Subjects
Judgment
R/CR.MA/5816/2023 ORDER DATED: 16/01/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 5816 of
2023
In R/CRIMINAL APPEAL/828/2023
With
R/CRIMINAL APPEAL NO. 828 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
Page 1 of 3
R/CR.MA/5816/2023 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/5816/2023 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 15:44:22
Page 3 of 3
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