Gujarat High Court
Nikhil Rameshbhai Mistri vs State Of Gujarat on 11 February, 2025
NEUTRAL CITATION
R/CR.A/1662/2024 JUDGMENT DATED: 11/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1662 of 2024
(AGAINST ACQUITTAL)
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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NIKHIL RAMESHBHAI MISTRI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
ANURAG R RATHOR(9315) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
MR BHARGAV PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 11/02/2025
ORAL JUDGMENT
1. The present appeal is filed by the appellant - original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") against the order dated 06.10.2023 passed by the learned Judicial Magistrate First Class (Traffic), Vadodara in Criminal Case No. 33166 of 2019, whereby the trial Court has dismissed the Criminal Case for want of Page 1 of 10 Uploaded by F.S. KAZI(HC01075) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:17:37 IST 2025 NEUTRAL CITATION R/CR.A/1662/2024 JUDGMENT DATED: 11/02/2025 undefined prosecution as the original complainant did not remain present under the provisions of Section 256 of Cr.P.C. and the original accused - respondent No. 2 herein came to be acquitted from the charge levelled against him under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act"). The respondent No.2 is hereinafter referred to as "the accused" as he 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 appellant is the proprietor of Samarth Industries and the accused had demanded an amount of Rs.2,00,000/- towards which the appellant had issued cheque No.000009 dated 21.08.2019 of his account with UCO Bank, Vadodara Branch The appellant deposited the cheque in his account with Bank of Baroda, Pratapnagar Vadodara Branch and the cheque was returned with the endorsement "Funds Insufficient". The appellant gave the demand statutory notice through his advocate on 20.09.2019 which was duly served to the accused on by RPAD but the accused did not repay the amount and hence the appellant filed the complaint under Section 138 of the N.I.Act, before the Chief Judicial Magistrate, Vadodara.Page 2 of 10 Uploaded by F.S. KAZI(HC01075) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:17:37 IST 2025
NEUTRAL CITATION R/CR.A/1662/2024 JUDGMENT DATED: 11/02/2025 undefined 2.2 The learned Judicial Magistrate First Class, (Traffic), Vadodara was pleased to consider the verification and documents produced by the appellant and take cognizance for the offence under Section 138 of the N.I.Act and passed an order to issue summons to the accused and the summons was duly served to the accused. The appellant filed his examination in chief at Exh.5 and the accused appeared before the learned Trial Court and the plea of the accused was recorded on 25.03.2022. The matter was pending for the cross examination of the appellant and as the appellant did not remain present, by an order dated 06.10.2023, the learned Judicial Magistrate First Class, (Traffic), Vadodara was pleased to dismiss the complaint for want of prosecution and want of appearance of the complainant.
3. Being aggrieved and dissatisfied by the impugned judgment and order the appellant has preferred the present Criminal Appeal under Section 378(4) of Criminal Procedure Code.
4. Heard learned advocate Mr. Anurag R. Rathor appearing for the appellant and learned APP Mr. Bhargav Pandya for the respondent - State. Though rule is served the respondent No 2 has not appeared either in person or through an advocate.
5. Learned advocate Mr. Anurag R. Rathor for the appellant has submitted that the trial Court has failed to appreciate Page 3 of 10 Uploaded by F.S. KAZI(HC01075) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:17:37 IST 2025 NEUTRAL CITATION R/CR.A/1662/2024 JUDGMENT DATED: 11/02/2025 undefined the facts and provisions of law in proper perspective and therefore the impugned judgment is unsustainable and bad in law. It was only due to a bonafide mistake, the advocate of the appellant did not remain present on the date of passing of the impugned judgment and hence, the same may be quashed and set aside. Learned advocate further submits that a false and fabricated FIR was filed against the appellant on 17.12.2022 and thereafter the appellant was pursuing his legal remedy by filling an anticipatory bail application before the learned Sessions Court and the Hon'ble High court of Gujarat. The appellant had also preferred quashing petition before this Hon'ble Court. The appellant had preferred anticipatory bail application before the learned Sessions Court as Criminal Miscellaneous Application no. 2901 of 2022 on 30.12.2022 which came to be rejected on 06.01.2023. The appellant thereafter preferred anticipatory bail application before this Hon'ble Court on 01.04.2023 and the same came to be registered on 03.04.2023 as Criminal Misc. Application No.5772 of 2023. That this Hon'ble Court was pleased to issue Rule in the matter on 06.06.2023 making it returnable on 13.06.2023 and by order dated 17.08.2023, this Hon'ble Court was pleased to permit the applicant to withdraw the application. It is submitted that the appellant had also preferred quashing application before this Hon'ble Court on 29.03.2023 which came to be registered as 03.04.2023 as Special Page 4 of 10 Uploaded by F.S. KAZI(HC01075) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:17:37 IST 2025 NEUTRAL CITATION R/CR.A/1662/2024 JUDGMENT DATED: 11/02/2025 undefined Criminal Application No.4366 of 2023 and the Hon'ble Court was pleased to permit the appellant to withdraw the matter on 04.07.2023. That thereafter the appellant herein came to be arrested on 13.10.2023 and subsequently he was released on regular bail before filing of the charge sheet by this Hon'ble Court in Criminal Misc. Application No.20389 of 2023 and the appellant was released from the judicial custody on 13.12.2023 and therefore when the Learned Trial Court was pleased to dismiss the matter of the appellant, the appellant was not aware as he was in judicial custody. Learned Advocate urges this Court to allow the appeal and remand the matter for trial on merits before the learned Trial Court.
6. Learned APP Mr.Bhargav Pandya 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. On perusal of the record it appears that the complaint was filed on 25.10.2019 and the summons was issued on 25.10.2019 and the matter was adjourned to 26.12.2019. The accused appeared on 16.03.2020 and an adjournment application Page 5 of 10 Uploaded by F.S. KAZI(HC01075) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:17:37 IST 2025 NEUTRAL CITATION R/CR.A/1662/2024 JUDGMENT DATED: 11/02/2025 undefined was preferred which was granted. The case could not proceed as the lock down due to the pandemic COVID-19 was imposed from 08.05.2020 to 09.02.2021. On 09.02.2021 summons were issued to both the parties and as the accused did not remained present a warrant was issued and bail was accepted. The plea of accused was recorded on 29.01.2022 and the matter was pending for exhibiting of documents and cross examination of the appellant. The appellant did not remain present and his exemption was granted and non bailable warrant was also issued against the accused. The rojkam does not clearly reflect whether the appellant and his advocate were present or not on the adjourned dates as the rojkam states "present/not." On 08.04.2023 the accused gave an application to dismiss the complaint below which an order of "Fix for the hearing and notice to complainant" was passed but the rojkam does not reflect whether any notice was issued on or after 08.04.2023 and whether it was served to the appellant and thereafter without entering into the merits of the case the learned Trial Court was pleased to pass the order dismissing the matter on 06.10.2023.
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:--Page 6 of 10 Uploaded by F.S. KAZI(HC01075) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:17:37 IST 2025
NEUTRAL CITATION R/CR.A/1662/2024 JUDGMENT DATED: 11/02/2025 undefined (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. At this stage, it is also appropriate to take into account the observations made by the Hon'ble Apex Court in the M/s. BLS Infrastructure Limited Vs M/s. Rajwant Singh & Others reported in 2023 4 SCC 326 in Para 20 which is reproduced as under:
"12. In Associated Cement Co. Ltd. (supra), the purpose of inserting a provision like SecAon256 of the Code was discussed and in light thereof, in paragraph 16, it was observed as under:
"16. What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, the court has a duty to acquit the accused in invitum."Page 7 of 10 Uploaded by F.S. KAZI(HC01075) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:17:37 IST 2025
NEUTRAL CITATION R/CR.A/1662/2024 JUDGMENT DATED: 11/02/2025 undefined After observing as above, it was held that where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant. Thus, the order of acquittal was setaside and it was directed that the prosecution would proceed from the stage where it reached before the order of acquittal was passed."
9.1 A coordinate bench of this Court in the case of Sureshchandra Chandulal Patni Vs Natwarlal Keshavlal Patni reported in 1992 1 GLR 626 observed in para 4 to 7 as under:
"(4) Section 256 of the Code of Criminal Procedure provides that 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. The proviso to Sec. 256 further contemplates 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.
(5) In the instant case, the learned Magistrate has not recorded any reason about his thinking it proper to adjourn the hearing of the case to some other date. It appears that he has ignored the proviso to Sec. 256 of the Code of Criminal Procedure. The power under Sec. 256 of the code of Criminal Procedure has been conferred on the Magistrate obviously in the interest of justice, with a view to seeing that the accused is not subjected to any undue harassment. It is clear from the proviso to Sec. 256 of the Code of Criminal Procedure that when the complainant is represented by a pleader or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with the personal attendance of the complainant and proceed with the case. In the instant case, the learned Magistrate does not appear to have applied his mind in dispensing with the personal attendance of the complainant and to proceed with the case or to adjourn the case to some other date as requested in the application Page 8 of 10 Uploaded by F.S. KAZI(HC01075) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:17:37 IST 2025 NEUTRAL CITATION R/CR.A/1662/2024 JUDGMENT DATED: 11/02/2025 undefined submitted by the Advocate for the complainant. In the present case, the situation as on 5/03/1984 squarely falls within the aforesaid proviso and still the learned magistrate acted under sub-sec. (1) of Sec. 256 of the Code of Criminal Procedure acquitting the accused. It is, therefore, clear that the learned Magistrate has ignored the provision contained in proviso to Sec. 256 of the Code of Criminal procedure and therefore the order passed by him is illegal and unsustainable.
(6) In the case of State of Gujarat v. Keshavaram Shivram Devmurari and Anr. , (1977) XVIII GLR 524, this Court [ Coram : N. H. Bhatt, J. (as he then was)] observed that it was really unfortunate to dismiss the complaint in absence of the complainant and ignoring the proviso to Sec. 256 of the Code of Criminal procedure and it was held that the repetition of such instances would not be there in future in the Court of the Magistrate. However, it appears that this has been ignored while dismissing the complaint and acquitting the accused in the present case. (7) Similarly, in the case of State of Gujarat v. Dhirajlal Pranslianker. Bhatt, reported in 1990 (1) GLH 466: (1990 (1) GLR 201), it is observed that the. Court should exercise sound judicial discretion and should adjourn the case when the complainant is absent and particularly when he is represented by an Advocate."
10. On scrutiny of the record and considering the documents submitted by the learned advocate for the appellant the arguments deserve consideration as the appellant was in fact pursuing his legal remedy in another case and the rojkam does no effect whether the learned advocate for the appellant was absent.
11. In light of the settled principle of law of the Apex Court in M/s BLS Infrastructure Limited (supra), it appears that the trial Court has committed an error in dismissing the matter even though the evidence of the appellant was on record. Page 9 of 10 Uploaded by F.S. KAZI(HC01075) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:17:37 IST 2025
NEUTRAL CITATION R/CR.A/1662/2024 JUDGMENT DATED: 11/02/2025 undefined
12. Considering the facts and circumstances of the case and considering the observations made in the decision of the Hon'ble Apex Court and this Court referred hereinabove, this Court is of the opinion that the present appeal is required allowed and the matter is to be remanded back to the trial Court for reconsideration.
13. Accordingly, the present appeal is allowed. The order dated 06.10.2023 passed by the learned Judicial Magistrate First Class (Traffic), Vadodara in Criminal Case No. 33166 of 2019 is hereby quashed and set aside and the complaint is restored to its original status.
13. The learned Trial Court is directed to decide the complaint on its own merits after giving proper opportunity to all the parties. The parties are directed to cooperate with the learned Trial Court in the proceedings without seeking any unnecessary adjournment.
Sd/-
(S. V. PINTO,J) F.S.KAZI Page 10 of 10 Uploaded by F.S. KAZI(HC01075) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:17:37 IST 2025