Gujarat High Court
Jashvantsinh Laxmansinh Zala vs State Of Gujarat on 22 July, 2025
NEUTRAL CITATION
R/CR.A/1252/2025 JUDGMENT DATED: 22/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1252 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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JASHVANTSINH LAXMANSINH ZALA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR CHINTAN S POPAT(5004) for the Appellant(s) No. 1
BAILABLE WARRANT NOT RECEIVED BACK for the
Opponent(s)/Respondent(s) No. 2
MR. PRANAV DHAGAT, 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 : 22/07/2025
ORAL JUDGMENT
1. Though served, the respondent no. 2 has not appeared either in person or through an advocate.
2. The present appeal is filed by the appellant - original complainant under Section 419 of Bharatiya Nagarik Surakhsha Sanhita, 2023 against the order dated 17.10.2024 passed by the learned Additional Chief Judicial Magistrate, Gir Somnath at Kodinar (hereinafter referred to Page 1 of 7 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Thu Jul 24 23:08:48 IST 2025 NEUTRAL CITATION R/CR.A/1252/2025 JUDGMENT DATED: 22/07/2025 undefined as the "learned Trial Court") in Criminal Case No. 511 of 2018, whereby the learned Trial 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").
2.1 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.
3. The brief facts culled out from the memo of the present appeal as well as the record and proceedings are as under:
3.1 The applicant and the respondent No.2 were having business relation and the respondent No.2 used to purchase goods from the applicant and an amount of Rs.6,09,609/- was outstanding towards which the respondent No.2 gave cheque No.198637 from his account with State Bank of India, Chorvad Branch. The cheque was Page 2 of 7 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Thu Jul 24 23:08:48 IST 2025 NEUTRAL CITATION R/CR.A/1252/2025 JUDGMENT DATED: 22/07/2025 undefined deposited by the applicant in his account with State Bank of India, Velan Branch but the cheque returned unpaid with the endorsement "Funds Insufficient". The demand statutory notice was given which was duly served to the respondent No.2 but the respondent No.2 did not pay up the amount within stipulated time and hence, the applicant filed the criminal complaint under Section 138 of N.I.Act before the Court of Judicial Magistrate First Class, Kodinar, which came to be registered as Criminal Case No.511 of 2018.
3.2 The learned Trial Court was pleased to consider the affidavit and documents produced on record took cognizance for the offence under Section 138 of the N I Act and passed an order to issue summons to the accused which was duly served to accused but he did not appear, and bailable warrants were issued but the same could not be served. The appellant had also taken the bailable warrant to be served to the respondent no. 2 by RPAD through concerned Police Station. On 17.10.2024, even though, the learned advocate for the applicant was present Page 3 of 7 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Thu Jul 24 23:08:48 IST 2025 NEUTRAL CITATION R/CR.A/1252/2025 JUDGMENT DATED: 22/07/2025 undefined and the matter was pending for return of the bailable warrant, the learned Trial Court was pleased to dismiss the complaint for want of prosecution on the part of the complainant.
4. Being aggrieved and dissatisfied by the impugned order the appellant has preferred present Criminal Appeal under Section 378 of Code of Criminal Procedure, 1973.
5. Heard learned advocate Mr. Chintan Popat appearing for the appellant and learned APP Mr. Pranav Dhagat for the respondent - State. Though served, none has appeared on behalf of the respondent no. 2 to make any submissions.
6. Learned advocate Mr. Chintan Popat 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. Learned advocate further submits that the learned Trial Court has not appreciated that the learned advocate for the appellant was present and the matter was pending for return of bailable warrant and Page 4 of 7 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Thu Jul 24 23:08:48 IST 2025 NEUTRAL CITATION R/CR.A/1252/2025 JUDGMENT DATED: 22/07/2025 undefined has passed the impugned order and hence, the same may be quashed and set aside.
7. Learned APP Mr. Pranav Dhagat 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.
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 Page 5 of 7 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Thu Jul 24 23:08:48 IST 2025 NEUTRAL CITATION R/CR.A/1252/2025 JUDGMENT DATED: 22/07/2025 undefined 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 scrutiny of the rojkam produced on record by the learned advocate for the appellant, it transpires that on 17.10.2024, the matter was pending for return of the bailable warrant served/unserved to the respondent No.2 and the learned advocate for the applicant was present before the learned Trial Court. The respondent No.2 was successful in avoiding the service of bailable warrants and the learned Trial Court was pleased to pass the impugned order of dismissal on the ground of non-prosecution.
10. It is pertinent to note that the case has been dismissed for want of prosecution and without considering the fact that the learned advocate for the appellant was present and the matter was pending for return of bailable warrant, the impugned order is passed and it appears that the trial Court has committed an error in dismissing the matter.
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NEUTRAL CITATION R/CR.A/1252/2025 JUDGMENT DATED: 22/07/2025 undefined
11. Considering the facts and circumstances of the case and the rojkaam of 17.10.2024. this Court is of the considered opinion that the present appeal is required allowed and the matter is to be remanded back to the learned Trial Court for trial on merits.
12. Accordingly, the present appeal is allowed. The order dated 17.10.2024 passed by the learned Additional Chief Judicial Magistrate, Gir Somnath at Kodinar in Criminal Case No. 511 of 2018 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) VASIM S. SAIYED Page 7 of 7 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Thu Jul 24 2025 Downloaded on : Thu Jul 24 23:08:48 IST 2025