Gujarat High Court
Dineshbhai Dhanjibhai Sorathiya vs State Of Gujarat on 11 February, 2025
NEUTRAL CITATION
R/CR.A/2054/2021 JUDGMENT DATED: 11/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2054 of 2021
(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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DINESHBHAI DHANJIBHAI SORATHIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR VIRAL V DAVE(3846) for the Appellant(s) No. 1
MR BHARGAV PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED BY DS 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 judgment and order dated 12.11.2021 passed by the learned 10 th Additional Chief Judicial Magistrate, Surat in Criminal Case No. 3616 of 2017, whereby the trial Court has dismissed the Criminal Case for want of prosecution as the original complainant did not remain present under the provisions of Section 256(3) of Cr.P.C. and the original Page 1 of 10 Uploaded by F.S. KAZI(HC01075) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:17:42 IST 2025 NEUTRAL CITATION R/CR.A/2054/2021 JUDGMENT DATED: 11/02/2025 undefined 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 Balaji Sales Corporation and the accused is the proprietor of Shri Tirupati Metallic and the accused had purchased goods from the appellant vide Bill No. 7 dated 29.08.2016 for Rs.1,03,835/- and Bill No. 8 dated 20.09.2016 for Rs.1,99,361/- towards which the accused had issued cheque No. 084576 dated 16.10.2016 for Rs.1,03,835/- and cheque No. 084562 dated 25.10.2016 for Rs.1,99,360/- of his account with The Surat Peoples Cooperative Bank Ltd., Sachin Branch, Surat. The appellant deposited cheque No. 084576 in his account with IDBI Bank, Katargam Branch, Surat and the cheque was returned with the endorsement "Funds Insufficient". The appellant gave the demand statutory notice through his advocate on 14.12.2016 which was duly served to the accused on 15.12.2016, but the accused did not repay the amount and hence Page 2 of 10 Uploaded by F.S. KAZI(HC01075) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:17:42 IST 2025 NEUTRAL CITATION R/CR.A/2054/2021 JUDGMENT DATED: 11/02/2025 undefined the appellant filed the complaint under Section 138 of the N.I.Act, before the Chief Judicial Magistrate, Surat.
2.2. The learned 2nd Additional Chief Judicial Magistrate.
Surat was pleased to consider the affidavit, documents produced vide a list at exhibit 3 and examination in chief of the appellant produced at exhibit 4 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 accused did not appear before the learned Trial Court and the matter was pending for bailable warrant and thereafter non bailable warrant which could not be served on the accused. By an order dated 12.11.2021, the learned 10 th Additional Chief Judicial Magistrate Surat was pleased to dismiss the complaint for want of prosecution on the part of the complainant.
3. Being aggrieved and dissatisfied by the impugned judgment and order the appellant has preferred present Criminal Appeal under Section 378(4) of Criminal Procedure Code.
4. Heard learned advocate Mr. Viral V. Dave appearing for the appellant and learned APP Mr. Bhargav Pandya for the respondent - State. Though served the respondent No. 2 has not appeared either in personal or through an advocate. Page 3 of 10 Uploaded by F.S. KAZI(HC01075) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:17:42 IST 2025
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5. Learned advocate Mr. Viral V. Dave 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 judgment is unsustainable and bad in law. Learned advocate further submits that due to a bonafide mistake, the advocate of the appellant did not remain present on the date of passing of the impugned judgment and therefore, the same may be quashed and set aside.
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. 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:Page 4 of 10 Uploaded by F.S. KAZI(HC01075) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:17:42 IST 2025
NEUTRAL CITATION R/CR.A/2054/2021 JUDGMENT DATED: 11/02/2025 undefined 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."
8. 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."
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 Page 5 of 10 Uploaded by F.S. KAZI(HC01075) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:17:42 IST 2025 NEUTRAL CITATION R/CR.A/2054/2021 JUDGMENT DATED: 11/02/2025 undefined stage where it reached before the order of acquittal was passed."
8.1. 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 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 Page 6 of 10 Uploaded by F.S. KAZI(HC01075) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:17:42 IST 2025 NEUTRAL CITATION R/CR.A/2054/2021 JUDGMENT DATED: 11/02/2025 undefined 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."
9. On scrutiny of the record and proceeding of the learned Trial Court it transpires that after the summons were duly served to the accused the bailable warrant was issued to the accused at the same address but the same returned unserved with the endorsement that the accused was not found at the given address and hence the new address of the accused was to be supplied by the appellant. The rojkam reflects that the appellant was present before the learned Trial Court on 11.01.2017, 10.04.2018, 21.06.2018 and 28.08.2018 and on 03.10.2018. The matter was transferred from the Court of the learned 9th Additional Chief Judicial Magistrate, Surat to the Court of the 13th Additional Chief Judicial Magistrate, Surat vide District Court Office Order No. 1362 of 2018 and the matter was posted on 09.11.2018. The learned Page 7 of 10 Uploaded by F.S. KAZI(HC01075) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:17:42 IST 2025 NEUTRAL CITATION R/CR.A/2054/2021 JUDGMENT DATED: 11/02/2025 undefined advocate for the appellant remained present and a Non Bailable Warrant as per the order passed below exhibit 7 was issued against the accused. The learned advocate for the appellant was present on 19.11.2018, 20.12.2018, 02.02.2019, 02.04.2019 and 30.05.2019. The rojkam on 15.03.2019 is incomplete does not reflect whether the learned advocate for the appellant was present or not. On 30.05.2019 the learned advocate for the appellant was present but the learned Trial Court passed an order below exhibit 1 to keep the case on Dormant File as per Para 211 of the Criminal Manual and to strike out the case from the Monthly Statements. A notice was thereafter issued to the appellant on 27.10.2021 directing the appellant to remain present on the date of adjournment 11.11.2021 and as per the endorsement of the concerned summons serving officer of Katargam Police Station on enquiry at the given address the appellant was not present and hence the appellant was contacted on his mobile number 9825921977 and the appellant had stated that he had gone to his home town and would not be able to remain present on the date of adjournment. The rojkam does not reflect whether the matter was taken up on 11.11.2019 and whether the learned advocate for the appellant was present or not and thereafter on the next day i.e. on 12.11.2019 the learned Trial Court was pleased to pass the following order :
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NEUTRAL CITATION R/CR.A/2054/2021 JUDGMENT DATED: 11/02/2025 undefined ORDER "The present complaint is hearby dismissed for want of prosecution on the part of complainant and is hereby disposed of accordingly."
12/11/2021 Sd/- (illegible)
Surat 10th additional. Chief Judicial Magistrate
Surat
10. In light of the above settled principles of law it appears that the learned Trial Court has passed the order on 12.11.2019, whereas the notice was issued to the applicant when the matter was placed on the dormant file for the adjourned date 11.11.2019, but the rojkam does not reflect whether the matter was taken up on 11.11.2019. The learned Trial Court ought to have considered that the notice was for the applicant to remain present on 11.11.2019 and the applicant had gone to his home town and the notice itself reflects that the applicant was contacted on the mobile and he had stated that he would not be able to remain present on 11.11.2019, but the learned Trial Court has passed the impugned order on 12.11.2019 and dismissed the complaint.
11. 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 learned Trial Court for reconsideration.Page 9 of 10 Uploaded by F.S. KAZI(HC01075) on Tue Feb 11 2025 Downloaded on : Tue Feb 11 23:17:42 IST 2025
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12. Accordingly, the present appeal is allowed. The order dated 12.11.2021 passed by the learned 10th Additional Chief Judicial Magistrate, Surat in Criminal Case No. 3616 of 2017 is hereby quashed and set aside and the complaint is restored to its original status for trial in accordance with law.
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 23:17:42 IST 2025