Gujarat High Court
Hathila Babubhai Nansing vs State Of Gujarat on 17 July, 2025
NEUTRAL CITATION
R/CR.A/1347/2025 JUDGMENT DATED: 17/07/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1347 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
==========================================================
Approved for Reporting No
==========================================================
HATHILA BABUBHAI NANSING
Versus
STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR A R DWIVEDI(11319) for the Appellant(s) No. 1
NOTICE SERVED for the Opponent(s)/Respondent(s) No. 2
MR. PRANAV DHAGAT, APP for the Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 17/07/2025
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 378 of Code of Criminal Procedure, 1973 against the order dated 17.01.2025 passed by the learned Chief Judicial Magistrate, Dahod (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 316 of 2024, whereby the learned Trial Court has dismissed Page 1 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:16:35 IST 2025 NEUTRAL CITATION R/CR.A/1347/2025 JUDGMENT DATED: 17/07/2025 undefined 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 appellant and the respondent No. 2 were known to each other and the respondent No. 2 had taken an amount of Rs.2,00,000/- to pay his pending installments to the finance company as he had purchased a cruiser vehicle and as he had not paid the outstanding installments, the vehicle was to be seized by the finance company. The amount of Rs.2,00,000/- was demanded by the appellant and the respondent No. 2 issued cheque No. 000011 dated Page 2 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:16:35 IST 2025 NEUTRAL CITATION R/CR.A/1347/2025 JUDGMENT DATED: 17/07/2025 undefined 13.12.2023 for Rs.2,00,000/- from his account with The Panchmahal District Co. Op. Bank Limited, Dahod Branch.
The said cheque was deposited by the appellant in his account with SBI Bank, Godi Road, Dahod Branch, but the cheque returned unpaid with the endorsment "Funds Insufficient". The demand statutory notice was issued to the respondent No. 2 but no reply was sent and no payment was made by the respondent No. 2 and hence, the appellant has filed a complaint under Section 138 of the N.I.Act, 1881 before the Court of the Chief Judicial Magistrate, Dahod, which came to be registered as Criminal Case No. 316 of 2024.
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. The appellant had filed the affidavit of examination in chief at Exh. 6 and the plea of the respondent No. 2 was recorded at Exh.12. Thereafter, the Page 3 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:16:35 IST 2025 NEUTRAL CITATION R/CR.A/1347/2025 JUDGMENT DATED: 17/07/2025 undefined respondent No. 2 did not appear before the learned Trial Court and on 12.11.2024, 13.12.2024 and 07.01.2025, non-bailable warrants were issued upon the application given by the respondent No. 2 and 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 419 of Bharatiya Nagarik Surakhsha Sanhita, 2023.
5. Heard learned advocate Mr. A.R. Dwivedi 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. A.R. Dwivedi 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 Page 4 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:16:35 IST 2025 NEUTRAL CITATION R/CR.A/1347/2025 JUDGMENT DATED: 17/07/2025 undefined 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 - 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 Page 5 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:16:35 IST 2025 NEUTRAL CITATION R/CR.A/1347/2025 JUDGMENT DATED: 17/07/2025 undefined 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:
"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 Page 6 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:16:35 IST 2025 NEUTRAL CITATION R/CR.A/1347/2025 JUDGMENT DATED: 17/07/2025 undefined 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 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 Page 7 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:16:35 IST 2025 NEUTRAL CITATION R/CR.A/1347/2025 JUDGMENT DATED: 17/07/2025 undefined 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.
(7) SIMILARLY, in the case of State of Gujarat v. Dhirajlal Page 8 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:16:35 IST 2025 NEUTRAL CITATION R/CR.A/1347/2025 JUDGMENT DATED: 17/07/2025 undefined 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 affidavit of the examination-in- chief of the appellant was produced at Exh. 6 and the plea of the accused was recorded at Exh. 12. Thereafter, the respondent No. 2 did not appear before the learned Trial Court and on 12.11.2024, 13.12.2024 and 07.01.2025, non-bailable warrants were issued upon the application given by the respondent No. 2 and the matter was posted on 17.01.2025 for service of non-bailable warrant to the respondent No. 2 and the respondent No. 2 was successfully avoiding the service of non-bailable warrants. On 17.01.2025, the learned Additional Chief Judicial Magistrate was pleased to pass the order under Exh. 1 and dismiss the complaint of the appellant. The learned advocate for the appellant was not present only on one occasion when the matter was pending for service of non-bailable warrant and the Page 9 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:16:35 IST 2025 NEUTRAL CITATION R/CR.A/1347/2025 JUDGMENT DATED: 17/07/2025 undefined respondent No. 2 was not present before the learned Trial Court. The learned Trial Court has not appreciated the affidavit of examination in chief and the documents that were on record and even though it was the fault of the respondent No.2 who was avoiding service of the non- bailable warrant. The matter was pending for cross- examination of the appellant and in the rojkaam, the learned Trial Court has observed that the learned advocate for the complainant was not present before the Court on 17.01.2025 and 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 Page 10 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:16:35 IST 2025 NEUTRAL CITATION R/CR.A/1347/2025 JUDGMENT DATED: 17/07/2025 undefined 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 passed by the learned Chief Judicial Magistrate, Dahod in Criminal Case No. 316 of 2024 dated 17.01.2025 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 Fri Jul 18 2025 Downloaded on : Sat Jul 19 00:16:35 IST 2025