Gujarat High Court
Electrotherm (India) Ltd. Thro ... vs State Of Gujarat on 5 August, 2025
NEUTRAL CITATION
R/CR.A/2011/2024 JUDGMENT DATED: 05/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2011 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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ELECTROTHERM (INDIA) LTD. THRO RAVIKANT PARADKAR
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MS. SIDDHI A. OZA(14543) for the Appellant(s) No. 1
SANSKRUTI R SHUKLA(8913) for the Appellant(s) No. 1
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No.
2,3,4
MR RIYAZ R PARMAR(11846) for the Opponent(s)/Respondent(s) No. 2,3
MS. C.M. SHAH, APP for the Opponent(s)/Respondent(s) No. 1
RULE UNSERVED for the Opponent(s)/Respondent(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 05/08/2025
ORAL JUDGMENT
1. The present appeal is filed by the appellant - original complainant under Section 378 of Code of Criminal Procedure, 1973 against the order dated 10.05.2023 passed by the learned 5th Additional Chief Judicial Magistrate and Senior Civil Judge, Ahmedabad (Rural) at Mirzapur (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 1259 of 2014, whereby the learned Trial Page 1 of 10 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:19:13 IST 2025 NEUTRAL CITATION R/CR.A/2011/2024 JUDGMENT DATED: 05/08/2025 undefined Court has dismissed the Criminal Case for want of prosecution as the appellant did not remain present under the provisions of Section 256 of Code of Criminal Procedure, 1973 (for short "Cr.P.C.") and the respondent No. 2 - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N I Act"). 1.1 The parties are hereinafter referred to as "the complainant" and "the accused" in the rank and file as they stood in the original case for the sake of convenience, clarity and brevity.
2. The brief facts culled out from the memo of the present appeal as well as the record and proceedings are as under:
2.1 The complainant is engaged in the business of manufacturing TMT Bars and the accused no. 1 is a partnership firm and the accused nos. 2 and 3 are the partners of the firm. The accused had purchased good worth Rs. 50,00,000/- from the complainant towards which cheque no. 637089 dated 16.12.2012 of Rs. 25,00,000/-
and cheque no. 637090 dated 16.12.2012 of Rs. Page 2 of 10 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:19:13 IST 2025
NEUTRAL CITATION R/CR.A/2011/2024 JUDGMENT DATED: 05/08/2025 undefined 25,00,000/- from their account with HDFC Bank, Vastrapur Ahmedabad Branch were issued by the accused. The cheques were deposited by the complainant in his account with Axis Bank, Vastrapur Ahmedabad Branch, however, both the cheques were returned unpaid with the endorsement "Payment Stopped by Drawer". The complainant gave the demand statutory notice to the accused which was duly served and the accused sent an evasive reply and did not make the payment and hence, the complainant filed a criminal complaint under Section 138 of the NI Act before the Court of the Chief Judicial Magistrate, Ahmedabad (Rural) at Mirzapur, which was registered as Criminal Case No. 1259 of 2014. 2.2 The learned Trial Court was pleased to consider the affidavit, documents produced and take cognizance for the offence under Section 138 of the N I Act and passed an order to issue summons to the accused. The accused nos. 1 and 2 were duly served with the summons and they appeared through their advocate but did not appear in person and exemption applications were granted by the Page 3 of 10 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:19:13 IST 2025 NEUTRAL CITATION R/CR.A/2011/2024 JUDGMENT DATED: 05/08/2025 undefined learned Trial Court. The matter was pending for service of summons to the accused no. 3 and as the summons could not be served to the accused no. 3, the matter was dismissed vide an order dated 03.02.2018. The complainant preferred Criminal Appeal No. 1960 of 2018 before this Court and the appeal was allowed and the order of dismissal was quashed and set aside and the matter was restored on file of the learned Trial Court. The matter was pending for service of warrant to the accused and by the impugned order dated 10.05.2023, the learned Trial Court was pleased to dismiss the complaint for want of prosecution on the part of the complainant though the learned advocate for the appellant was present on the day of the order.
3. Being aggrieved and dissatisfied by the impugned order the appellant has preferred present Criminal Appeal under Section 378 of Code of Criminal Procedure, 1973.
4. Heard learned advocate Ms. Sanskruti Shukla appearing for the appellant, learned advocate Mr. Bhuvnesh Gahlot for learned advocate Mr. Riyaz Parmar and learned Page 4 of 10 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:19:13 IST 2025 NEUTRAL CITATION R/CR.A/2011/2024 JUDGMENT DATED: 05/08/2025 undefined APP Ms. C.M. Shah for the respondent - State.
5. Learned advocate Ms. Sanskruti Shukla for the appellant has submitted that the learned Trial Court has failed to appreciate the facts and provisions of law in proper perspective and therefore, the impugned order is unsustainable and bad in law as on the date of the order, the learned advocate for the appellant was present but the learned Trial Court has not considered the same and hence, the same may be quashed and set aside.
6. Learned APP Ms. C.M. Shah for the respondent - State has submitted that after recording the absence of learned advocate for the appellant, the learned Trial Court has passed the impugned order under Section 256 of the Cr.P.C. and hence, this Court may not interfere with the impugned order and has urged this Court to dismiss the present appeal.
7. Learned advocate Mr. Bhuvnesh Gahlot for learned advocate Mr. Riyaz Parmar for the respondent nos. 2 and 3 submits that the respondents have no objection if the Page 5 of 10 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:19:13 IST 2025 NEUTRAL CITATION R/CR.A/2011/2024 JUDGMENT DATED: 05/08/2025 undefined matter is remanded to the learned Trial Court for trial afresh and the respondent nos. 2 and 3 undertake to remain present before the learned Trial Court on the date fixed by this Court.
8. As the matter has been dismissed by an order under Section 256 of the Cr.P.C. it is appropriate to have a glance of Section 256 of Cr.P.C. which reads as under:-
"256. Non-appearance or death of complainant.--
(1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:
Provided that where the complainant is represented by a pleader or by the officer conducting the prosecution or where the Magistrate is of opinion that the personal attendance of the complainant is not necessary, the Magistrate may, dispense with his attendance and proceed with the case.
(2) The provisions of sub-section (1) shall, so far as may be, apply also to cases where the non-appearance of the complainant is due to his death."
9. On perusal of the rojkaam produced on record by the learned advocate for the appellant, it appears that the Page 6 of 10 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:19:13 IST 2025 NEUTRAL CITATION R/CR.A/2011/2024 JUDGMENT DATED: 05/08/2025 undefined accused nos. 2 and 3 were duly served and they appeared before the learned Trial Court on 10.04.2014 and the vakalatnama was filed on their behalf at Exh. 4 and an exemption application was preferred at Exh. 5. Thereafter, as the accused did not appear, an application for issuance of warrant was given by the complainant on 16.06.2014 and on the same day, an application at Exh. 9 for cancellation of warrant was given. Thereafter, the accused no. 2 did not remain present and exemption applications at Exhs. 10, 11, 14, 15, 16, 18, 20, 21, 22 and 23 were given by the learned advocate for the accused on the next dates of adjournments. During this time, the matter was pending for service of summons to the accused no. 3 and on 18.11.2014, the complainant had preferred an application at Exh. 12 for issuance of a warrant against the accused no. 2 and an application at Exh. 13 to drop the proceedings against the accused no. 3. The order passed by the learned Trial Court on the application at Exh. 13 is "fixed for hearing" and it appears that thereafter, no order was passed on the application. After the matter was remanded by an order of Page 7 of 10 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:19:13 IST 2025 NEUTRAL CITATION R/CR.A/2011/2024 JUDGMENT DATED: 05/08/2025 undefined this Court, the complainant appeared and paid the amount of Rs. 2500/- as costs before the District Legal Service Authority and the learned advocate for the complainant was present and gave applications for issuance of warrant against the accused no. 2 as the accused no. 2 was not present before the learned Trial Court. Even on 10.05.2023, the date on which the impugned order of dismissal came to be passed, the learned advocate for the complainant was present but the learned Trial Court, without passing any order below Exh. 13 and without appreciating the provisions of Section 256(1) of Code of Criminal Procedure, 1973 in proper perspective was pleased to pass the impugned order. It appears that the application at Exh. 13 was kept pending and without passing an order below Exh. 13, wherein, the proceedings against the accused no. 3 were requested to be dropped in the interest of justice, the impugned order of dismissal came to be passed. Hence, considering the provisions of Section 256(1) of Code of Criminal Procedure, 1973, when the learned advocate for the complainant was present and the presence of the complainant was not Page 8 of 10 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:19:13 IST 2025 NEUTRAL CITATION R/CR.A/2011/2024 JUDGMENT DATED: 05/08/2025 undefined required, without inquiring whether the warrant was served or unserved to the accused, and without passing an order below Exh. 13, the impugned order came to be passed and hence, the impugned order passed by the learned Trial Court is illegal and perverse and the learned Trial Court has committed an error in dismissing the matter.
10. Accordingly, the present appeal is allowed. The order dated 10.05.2023 passed by the learned 5 th Additional Chief Judicial Magistrate and Senior Civil Judge, Ahmedabad (Rural) at Mirzapur in Criminal Case No. 1259 of 2014 is hereby quashed and set aside and the complaint is restored to its original status for trial in accordance with law.
11. The learned Trial Court is directed to decide the complaint on its own merits after giving proper opportunity to all the parties. As the matter is of the year 2014, the parties are directed to remain present before the learned Trial Court on 08.09.2025 and to cooperate with the learned Trial Court in conducting the matter without seeking any unnecessary adjournment.
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NEUTRAL CITATION R/CR.A/2011/2024 JUDGMENT DATED: 05/08/2025 undefined
12. Record and proceedings, if any, be sent to the learned Trial Court forthwith.
Sd/-
(S. V. PINTO,J) VASIM S. SAIYED Page 10 of 10 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Aug 08 2025 Downloaded on : Sat Aug 09 00:19:13 IST 2025