Gujarat High Court
Vimalbhai Bhagvanbhai Agrawal ... vs State Of Gujarat on 12 February, 2025
NEUTRAL CITATION
R/CR.MA/2975/2025 ORDER DATED: 12/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 2975 of
2025
In F/CRIMINAL APPEAL NO. 38582 of 2024
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VIMALBHAI BHAGVANBHAI AGRAWAL PROPRIETOR OF HARIOM
TEXTILE
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. JIGNESH J. JANI(16031) for the Applicant(s) No. 1
MS. JIRGA JHAVERI, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 12/02/2025
ORAL ORDER
1. The present application is filed by the appellant - original complainant under Section 378(4) of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") seeking leave to appeal against the judgment and order dated 05.10.2023 passed by the learned 5 th Additional Senior Civil Judge & Judicial Magistrate First Class, Surat in Criminal Case No. 18418 of 2022, whereby the learned 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 accused - respondent No. 2 herein came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act").
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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 applicant is the proprietor of Hari Om Textiles and the accused is the proprietor of Vedant Fab and they both were into the business of fancy sarees and dress materials. That from March, 2018 to June, 2018 the accused had purchased Sarees from the applicant and an amount of Rs.11,05,290/- was outstanding, towards which, the accused gave cheque bearing No. "001521" dated 30/08/2021 of his account of Kotak Mahindra Bank Limited, Vrajbhumi Apartment Branch, Surat. The applicant deposited the said cheque in his account with Nutan Nagarik Sahakari Bank Limited, Ring Road Surat Branch, and the cheque returned unpaid with the endorsement "Drawer Signature Differs". That the applicant gave the statutory demand notice on 29/09/2021 to the accused, which was duly served to the accused on 30/09/2021 but the accused did not pay the amount and hence the applicant filed the complaint under Section 138 of the Negotiable Instruments Act, 1881 before the Court of the Chief Judicial Magistrate, Surat.
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NEUTRAL CITATION R/CR.MA/2975/2025 ORDER DATED: 12/02/2025 undefined 2.2 The accused was duly served with the summons and the accused appeared and the plea of the accused was recorded at Exh. 8 and the evidence of the applicant was taken on record. The matter was pending for the cross-examination of the applicant and by an order dated 05/10/2023, the learned 5th Additional Chief Judicial Magistrate First Class, Surat was pleased to dismiss the complaint of the applicant due to non-appearance of the complainant and acquitted the accused for the offence U/s. 138 of the N.I.Act, 1881.
3. Being aggrieved and dissatisfied with the impugned order, the applicant has preferred the present applicant seeking leave to appeal mainly stating that, the order reflects that the learned advocate for the applicant was present before the Court concerned but the learned Trial Court has passed the impugned order, which is perverse and bad in law. That the evidence of the complainant was on record but the same has not been considered and in light of the settled principles of law, the leave to appeal must be granted.
4. Heard learned advocate Mr. Jignesh J. Jani for the applicant and learned Additional Public Prosecutor Ms. Jirga Jhaveri for the respondent State. Though served, the respondent No. 2 has not appeared either in person or through an advocate.
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5. Learned advocate Mr. Jignesh J. Jani for the applicant has reiterated the contents of the application and has taken this Court through the copy of the Rojkam as also the impugned order and submits that as the evidence of the applicant was on record, the same ought to have been considered. Moreover, the order reflects that the learned advocate was present before the learned Trial Court and the impugned order has been passed, which is perverse, improper and bad in law and hence, learned advocate for the applicant urges this Court to allow the applicant seeking leave to appeal.
6. Learned Additional Public Prosecutor, Ms. Jirga Jhaveri for the respondent-State has fairly submitted that looking to the impugned order itself, the presence of the learned advocate for the applicant has been recorded by the learned Trial Court and hence, appropriate order may be passed in the interest of justice.
7. 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:
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NEUTRAL CITATION R/CR.MA/2975/2025 ORDER DATED: 12/02/2025 undefined "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 set aside and it was directed that the prosecution would proceed from the stage where it reached before the order of acquittal was passed.
8. In light of the above judgment of the Hon'ble Apex Court in M/s. BLS Infrastructure (Supra) and considering the copy of the Rojkam and the impugned order, it transpires that the affidavit of the examination-in- chief of the applicant was produced at Exh. 4 and the plea of the accused was recorded at Exh.8 on 23-03-2023. The documents produced by the applicant vide list at Exh. 5 were exhibited at Exh. 10 to Exh.23 on 26- 06-2023 and the matter was pending for cross-examination of the applicant on 10-08-2023 and on 10-08-2023, the applicant or his advocate did not remain present and the accused and his advocate were present and the matter was adjourned to 05-10-2023. On 05-10-2023, the learned Trial Court has observed that the learned advocate for the complainant had appeared before this Court on 05-10-2023 but has passed the Page 5 of 6 Uploaded by VISHAL MISHRA(HC01088) on Fri Feb 14 2025 Downloaded on : Sat Feb 15 02:48:37 IST 2025 NEUTRAL CITATION R/CR.MA/2975/2025 ORDER DATED: 12/02/2025 undefined impugned order of dismissal, which is improper in light of the settled principles of law.
9. Consequently, the present application seeking leave to appeal is granted.
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