Gujarat High Court
Natwarlal Patel S/O Samubhai vs Mahendra Dhanjibhai Patel on 15 July, 2025
NEUTRAL CITATION
R/CR.A/1274/2025 JUDGMENT DATED: 15/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1274 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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NATWARLAL PATEL S/O SAMUBHAI
Versus
MAHENDRA DHANJIBHAI PATEL & ANR.
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Appearance:
MR PREM D DAVE(10958) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
MR. PRANAV DHAGAT, APP for the Opponent(s)/Respondent(s) No. 2
RULE SERVED for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 15/07/2025
ORAL JUDGMENT
1. Learned advocate Mr. Jainam Shah has appeared on behalf of the respondent no. 1 and upon instructions seeks permission to file his appearance.
2. The present appeal is filed by the appellant - original complainant under Section 419(4) of the Bharatiya Nagrik Suraksha Sanhita, 2023 (for short "BNSS") against the order passed by the learned Judicial Magistrate First Class (First Court), Surat (hereinafter referred to as the "learned Page 1 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:23:59 IST 2025 NEUTRAL CITATION R/CR.A/1274/2025 JUDGMENT DATED: 15/07/2025 undefined Trial Court") in Criminal Case No. 20033 of 2010 on 14.10.2024, 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. 1 - 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. 1 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.1 were known to each other and the applicant gave an amount of Rs.5,00,000/- as hand loan to the respondent No.1 towards which the respondent No.1 issued cheque No. 239947 dated 21.09.2009 from his account with the HDFC Bank, Surat Branch. The cheque was deposited by the applicant Page 2 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:23:59 IST 2025 NEUTRAL CITATION R/CR.A/1274/2025 JUDGMENT DATED: 15/07/2025 undefined in his account and the said cheque returned unpaid with the endorsement "Account Closed". The demand statutory notice was given, which was refused by the respondent No.1 and the amount was not paid within stipulated time, and hence, the applicant filed the complaint under Section 138 of N.I.Act before the Court of the Chief Judicial Magistrate, Surat, which came to the registered as Criminal Case No.20033 of 2010.
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 to accused but he did not appear, and bailable and non-bailable warrants were issued but the same could not be served.
The appellant had filed the affidavit of examination in chief and the matter was pending for service of warrant and cross examination of the appellant but by an order dated 14.10.2024, the learned Trial Court was pleased to dismiss Page 3 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:23:59 IST 2025 NEUTRAL CITATION R/CR.A/1274/2025 JUDGMENT DATED: 15/07/2025 undefined 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 the present Criminal Appeal under Section 419 of BNSS.
5. Heard learned advocate Mr. Prem Dave appearing for the appellant, learned advocate Mr. Jainam Shah for the respondent no. 1 and learned APP Mr. Pranav Dhagat for the respondent - State.
6. Learned advocate Mr. Prem 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 order is unsustainable and bad in law. Learned advocate further submits that the learned Trial Court has not appreciated the evidence on record and has passed the impugned order and hence, the same may be quashed and set aside.
7. Learned APP Mr. Pranav Dhagat for the respondent - Page 4 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:23:59 IST 2025
NEUTRAL CITATION R/CR.A/1274/2025 JUDGMENT DATED: 15/07/2025 undefined State and learned advocate Mr. Jainam Shah for the respondent No. 1 have jointly 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 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 Page 5 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:23:59 IST 2025 NEUTRAL CITATION R/CR.A/1274/2025 JUDGMENT DATED: 15/07/2025 undefined 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 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."
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NEUTRAL CITATION R/CR.A/1274/2025 JUDGMENT DATED: 15/07/2025 undefined 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 Page 7 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:23:59 IST 2025 NEUTRAL CITATION R/CR.A/1274/2025 JUDGMENT DATED: 15/07/2025 undefined 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.
(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 produced on record by the learned advocate for the appellant, it transpires that the Page 8 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:23:59 IST 2025 NEUTRAL CITATION R/CR.A/1274/2025 JUDGMENT DATED: 15/07/2025 undefined appellant had filed the complaint on 03.02.2010 and the affidavit of examination-in-chief was also filed by the appellant. The respondent No.1 was duly served with the summons and after the respondent No.1 appeared before the learned Trial Court, the plea of the applicant was recorded at Exh.6 and evidence including the affidavit of examination-in-chief of the applicant was filed on record at Exh. 21 and all the necessary documents were produced at Exh. 25 to Exh. 29. The respondent No.1 did not regularly appear before the learned Trial Court and did not cross- examine the applicant and hence, on a number of occasions, bailable and non-bailable warrants came to be issued. If the rojkam is perused, it appears that for a long time, the respondent No.1 was successful in avoiding the service of bailable and non-bailable warrants issued against him and during this time, the matter was transferred from one Court to another Court. The applicant was present on a number of occasions and on 14.10.2024, the learned Trial Court was pleased to pass the impugned order and dismiss the complaint under Section 256 of the Code of Criminal Page 9 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:23:59 IST 2025 NEUTRAL CITATION R/CR.A/1274/2025 JUDGMENT DATED: 15/07/2025 undefined Procedure, 1973. The learned Trial Court did not consider that the affidavit of examination-in-chief and other documentary evidences were already on record and duly exhibited and without considering the same, has passed the impugned order of dismissal on the ground of non- prosecution.
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.
13. Accordingly, the present appeal is allowed. The order Page 10 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:23:59 IST 2025 NEUTRAL CITATION R/CR.A/1274/2025 JUDGMENT DATED: 15/07/2025 undefined passed by the learned Judicial Magistrate First Class (First Court), Surat in Criminal Case No. 20033 of 2010 on 14.10.2024 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.
(S. V. PINTO,J) VASIM S. SAIYED Page 11 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:23:59 IST 2025