Gujarat High Court
Mausam Nikhilbhai Shah Owner Of Nisham ... vs State Of Gujarat on 28 July, 2025
NEUTRAL CITATION
R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 561 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
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MAUSAM NIKHILBHAI SHAH OWNER OF NISHAM FINANCE
Versus
STATE OF GUJARAT & ANR.
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Appearance:
PANKEET P AUNDHIYA(9421) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED 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 : 28/07/2025
ORAL JUDGMENT
1. Though the bailable warrant is served to the respondent no.2, he has not appeared before this Court either in person nor has engaged a lawyer to make submissions on his behalf.
2. The present appeal is filed by the appellant - original Page 1 of 11 Uploaded by F.S. KAZI(HC01075) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:07:37 IST 2025 NEUTRAL CITATION R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025 undefined complainant under Section 378 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") against the order passed by the learned Judicial Magistrate, First Class, Shihori in Criminal Case No. 732 of 2016 on dated 19.11.2022, 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 the 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 appellant and the respondent No. 2 are hereinafter referred to as "the complainant" and "the accused" as they 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 complainant is a money lender and doing his business in the name of Nisham Finance. The accused had personally contacted the complainant and had borrowed an amount of Rs.90,000/- and as per his demand, on Page 2 of 11 Uploaded by F.S. KAZI(HC01075) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:07:37 IST 2025 NEUTRAL CITATION R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025 undefined 21.07.2022, an amount of Rs.40,000/- was transferred by IMPS in the bank account of the accused with State Bank of India, Bharuch Branch and another Rs.20,000/- was given in cash on the same day. On 29.07.2022, an amount of Rs.15,000/- was transferred by IMPS in the bank account of the accused with State Bank of India, Bharuch Branch and an amount of Rs. 7500/- was given by cash and once again on 06.08.2022, an amount of Rs. 5000/-
was given by cheque no. 228284 of Ujjivan Small Finance Bank, Bharuch and an amount of Rs. 2500/- was given in cash. The accused had to pay interest at the rate of 1.25% per month and was to repay the amount of Rs. 90,000/- with interest at the rate of 1.25%. The accused returned an amount of Rs. 2850/- and gave cheque no. 592987 dated 30.08.2022 for Rs.87,150/- his account with State Bank of India, Bharuch Branch. The cheque was deposited by the applicant in his a c c o u n t with, Ujjivan Small Finance Bank, Bharuch Branch on 06.09.2022, but the cheque returned unpaid with an endorsement "Exceeds Arrangements". The applicant gave the statutory demand notice through his advocate on 09.09.2022 which was returned with an endorsement "Left" and the applicant filed the Page 3 of 11 Uploaded by F.S. KAZI(HC01075) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:07:37 IST 2025 NEUTRAL CITATION R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025 undefined complaint under Section 138 of the Act before the Court of the Chief Judicial Magistrate, Bharuch.
3.2. The learned Trial Court was pleased to consider the affidavit, documents produced and examination-in-chief of 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 which was duly served but the accused did not appear before the learned Trial Court. On 15.03.2023, the learned advocate for the applicant submitted an application stating that the applicant was before the Hon'ble High Court for his application of anticipatory bail and had also submitted the case status of the case pending before the High Court but the learned Trial Court was pleased to dismiss the complaint under Section 256 o f t h e of the C r . P . C . for want of prosecution on the part of the complainant.
4. Being aggrieved and dissatisfied by the impugned judgment and order passed by the learned Trial Court dismissing the criminal case of the present appellant - complainant for want of prosecution, the appellant has preferred present criminal Page 4 of 11 Uploaded by F.S. KAZI(HC01075) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:07:37 IST 2025 NEUTRAL CITATION R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025 undefined appeal.
5. Heard learned advocate Mr.Pankeet Aundhiya for the appellant and learned APP Mr.Pranav Dhagat for the respondent - State. Though served, the respondent No. 2 has not appeared either in person or through an advocate.
6. Learned advocate Mr.Pankeet Aundhiya 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 affidavit of examination in chief was on record at exh.4 and the documentary evidence on record but without considering the same, the impugned order came to be passed 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 Page 5 of 11 Uploaded by F.S. KAZI(HC01075) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:07:37 IST 2025 NEUTRAL CITATION R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025 undefined 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 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: Page 6 of 11 Uploaded by F.S. KAZI(HC01075) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:07:37 IST 2025
NEUTRAL CITATION R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025 undefined "12. In Associated Cement Co. Ltd. (supra), the purpose of inserting a provision like Section256 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 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 Page 7 of 11 Uploaded by F.S. KAZI(HC01075) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:07:37 IST 2025 NEUTRAL CITATION R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025 undefined 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 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.Page 8 of 11 Uploaded by F.S. KAZI(HC01075) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:07:37 IST 2025
NEUTRAL CITATION R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025 undefined (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 rojkam and the paper book filed by the learned advocate for the appellant, it transpires that the case was filed and the complainant submitted his affidavit of examination-in-chief at Exh.4 and 9 documentary evidences, vide list at Exh.3, the complainant also gave an application at Exh.5 for exhibiting the documents, and the summons were duly served to the accused . The accused appeared before the learned Trial Court on 18.10.2022 and his plea was recorded at Exh.6 and the accused submitted that he was giving the cheque No.593013 for Rs.87,150/- from his account with State Bank of India dated 28.11.2022, which was the amount of the cheque, for which, the case was filed by the complainant. The accused filed the pursis at Exh.7 and also submitted a copy of the cheque on record, and thereafter, the matter was pending for compromise between the parties. The complainant had preferred Criminal Misc. Application No. 5471 of 2023 under Section 438 of the Cr.P.C. before this Court and on Page 9 of 11 Uploaded by F.S. KAZI(HC01075) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:07:37 IST 2025 NEUTRAL CITATION R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025 undefined 12.04.2023, the learned advocate for the complainant was present and had produced an adjournment application at Exh.10 and document vide a list at Exh.11. The learned Trial Court was pleased to reject the application for adjournment and was pleased to pass the impugned order below Exh.1 and dismiss the case under section 256 of the Cr.P.C. without appreciating the entire evidence on record.
11. It is pertinent to note that the case has been dismissed for want of prosecution. 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.
12. Considering the facts and circumstances of the case and considering the observations made in the decision of the Apex Court and this Court referred hereinabove, 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.
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NEUTRAL CITATION R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025 undefined
13. Accordingly, the present appeal is allowed. The order passed by the learned Judicial Magistrate, First Class, Shihori in Criminal Case No. 732 of 2016 on dated 19.11.2022 is hereby quashed and set aside and the complaint is restored to its original status for trial in accordance with law.
14. 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 11 of 11 Uploaded by F.S. KAZI(HC01075) on Tue Jul 29 2025 Downloaded on : Wed Jul 30 01:07:37 IST 2025