Gujarat High Court
Ashokbhai Dalichandji Chhajed vs State Of Gujarat on 30 September, 2025
NEUTRAL CITATION
R/CR.A/1097/2025 JUDGMENT DATED: 30/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1097 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
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ASHOKBHAI DALICHANDJI CHHAJED
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR P P MAJMUDAR(5284) for the complainant (s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
MR ANIRUDH N SUCHAK(10768) for the Opponent(s)/Respondent(s) No. 2
MS. CHETNA SHAH, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 30/09/2025
ORAL JUDGMENT
1. The present appeal is filed by the complainant - original complainant under Section 419 of the Bharatiya Nagarik Suraksha Sanhita, 2023 to quash and set aside the order of acquittal dated 17.01.2025 passed by the learned 3rd Judicial Magistrate, First Class, Surat (hereinafter referred to as the trial Court, for short) in Criminal Case No. 49524 of 2018, whereby, the learned trial Court acquitted the accused - original accused for the offence punishable under Sections 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as NI Act, for short).
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as " the complainant and the accused" as they 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 complainant and the accused had business relations, and when accused required financial assistance for personal purposes, he requested a loan from the complainant. In response, the complainant provided a hand loan, against which the accused issued a cheque in question and the as cheque was dishonored, the complainant filed a complaint under Section 138 of the N.I. Act, leading to Criminal Case No. 25956 of 2006.
A settlement agreement was reached between both parties on 28.05.2018, which was notarized at Entry No. 565 of 2018. As per the settlement, the accused undertook to repay the hand loan, and the complainant withdrew the case in the Lok Adalat on 22.04.2018. In compliance with the settlement, the accused issued five cheques totaling Rs. 20,00,000/-, drawn on the Central Bank of India, Surat. However, accused requested for time and asked the complainant not to deposit the cheques immediately. Upon depositing them in The Adinath Co. Op. Bank Ltd., the cheques were dishonored on 07.08.2018 due to "funds insufficient"
and, hence, a complainant gave a notice on 23.08.2018 but the accused Page 2 of 10 Uploaded by VISHAL MISHRA(HC01088) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 07:17:34 IST 2025 NEUTRAL CITATION R/CR.A/1097/2025 JUDGMENT DATED: 30/09/2025 undefined did not reply to the notice nor made any payment and hence the complaint was filed before the Court of Chief Judicial Magistrate, Surat under Section 138 of the N.I.Act., which was registered as Criminal Case No. 49524 of 2018.
2.2 The accused was duly served with the summons, but did not appear before the learned trial Court and a non-bailable warrant came to be issued against accused , which also remained unserved, and accused was successful in evading the serving of the same. Thereafter, the complainant filed an appeal to issue a proclamation against accused, and after publication of the proclamation in Divya Bhaskar", the accused appeared before the learned trial Court, and on the next date, i.e., 03.02.2020, neither the accused nor his advocate remained present. Thereafter, the complainant filed an appeal under Section 83 of the Code of Criminal Procedure, 1983, to attach the property of accused , which was allowed, and the property of accused was ordered to be attached vide an order dated 01.07.2021. The accused once again appeared before the learned trial Court and filed an appeal to stay the attachment proceedings, and the same came to be allowed vide an order dated 23.02.2022. The complainant thereafter, filed an appeal for issuance of a warrant as the accused did not remain present and did not attend the trial. The complainant has produced the affidavit of examination in chief at Exh. 4 Page 3 of 10 Uploaded by VISHAL MISHRA(HC01088) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 07:17:34 IST 2025 NEUTRAL CITATION R/CR.A/1097/2025 JUDGMENT DATED: 30/09/2025 undefined and the matter was pending for recording of cross examination of the complainant and for the complainant and his advocate remained vigilant and preferred a number of applications for issuance of non-bailable warrant and even though the warrants were issued, the accused did not appear. The stage of cross examination was closed and the matter was pending for the further statement of the complainant under Section 313 of the Code of Criminal Procedure, 1983 but the learned trial Court without appreciating the evidence on record, was pleased to pass an order 17.01.2025 and the complaint of the complainant came to be dismissed on the ground of non-prosecution.
3. Being aggrieved and dissatisfied by the impugned order the complainant has preferred present Criminal Appeal under Section 378 of Criminal Procedure Code
4. Heard learned advocate Mr. P.P.Majmudar for the appellant and Ms. Chetna Shah, learned Additional Public Prosecutor, for the respondent State. Though served the respondent No. 2 has not appeared either in person or through an advocate. Perused the judgment and order passed by the learned trial Court as well as the copy of the rojkam produced by the learned advocate for the accused.
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5. Learned advocate Mr. P.P.Majmudar for the complainant submits that the complainant made all efforts to secure the presence of the respondent No. 2 for trial and was present for the cross examination but the respondent No. 2 was successful in evading service and without considering the evidence on record, the order has been passed below Exh.1 which is erroneous. Hence the order passed by the Trial Court must be quashed and set aside.
6. Learned Additional Public Prosecutor, Ms. Chetna Shah for the respondent-State has submitted that the learned trial Court has not appreciated the evidence on record and the issue requires consideration and hence appropriate orders may be passed.
7. Learned advocate Mr. Anirudh N. Suchak for the respondent No. 2 has submitted that the learned Trial Court has recorded the absence of the appellant and has passed the impugned order and hence, no interference is required and the appeal may be rejected.
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 herein-before contained, acquit the accused, Page 5 of 10 Uploaded by VISHAL MISHRA(HC01088) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 07:17:34 IST 2025 NEUTRAL CITATION R/CR.A/1097/2025 JUDGMENT DATED: 30/09/2025 undefined 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:
"12. In Associated Cement Co. Ltd. (supra), the purpose of inserting a provision like Section 256 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 set aside 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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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 herein-before 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 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 appeal 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 Page 7 of 10 Uploaded by VISHAL MISHRA(HC01088) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 07:17:34 IST 2025 NEUTRAL CITATION R/CR.A/1097/2025 JUDGMENT DATED: 30/09/2025 undefined 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 impugned order of the learned Trial Court and the copy of the paper book and copy of the Rojakm produced, it transpires that after the learned trial Court took cognizance of the offence, the summons were issued but the summons were remained unserved and the respondent No. 2 was successful in evading the service. The appellant filed an application for proclamation, which was published in the daily "Divya Bhaskar" and the respondent No. 2 appeared before the learned Trial Court but thereafter, the respondent No. 2 or his advocate did not remain present and an application under Section 83 of the Code of Criminal Procedure, 1973 to attach the property of the respondent No. 2 was filed, which was allowed by the learned Trial Court and thereafter, the respondent No. 2 appeared before the learned Trial Court and filed an application to stay the attachment proceedings, which was also allowed by the learned Trial Court vide order dated 23-02-2022. Once again, the respondent No. 2 did not appear and a warrant was issued but the Page 8 of 10 Uploaded by VISHAL MISHRA(HC01088) on Wed Oct 08 2025 Downloaded on : Sat Oct 11 07:17:34 IST 2025 NEUTRAL CITATION R/CR.A/1097/2025 JUDGMENT DATED: 30/09/2025 undefined respondent No. 2 was successful in avoiding the service. Along with the complaint, the appellant had produced the affidavit of examination-in- chief at Exh. 4 and all the documents, on which, the appellant relied upon, were produced before the learned Trial Court and the matter was pending for cross-examination of the appellant but even though the appellant was present before the learned Trial Court on many adjournments, he was not cross examined by the learned advocate for the respondent No.2. The learned Trial Court also closed the stage of cross- examination and the matte was pending for recording further statement of the respondent No. 2 but without appreciating the evidence on record, the learned Trial Court was pleased to pass an order dated 17-01-2025 and dismiss the complaint of the complainant on the ground of non- prosecution. It appears that the entire evidence was on record and the learned Trial Court has not appreciated the evidence on record but has passed the impugned order of dismissal.
11. Considering the facts and circumstances of the case and considering the observations made in the decision of the Apex Court and this Court referred herein above, this Court is of the considered opinion that the present appeal is required to be allowed and the matter is to be remanded back to the learned Trial Court for trial on merits.
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12. Accordingly, the present appeal is allowed. The order dated 17-01- 2025 passed by the learned 3rd Judicial Magistrate First Class, Surat in Criminal Case No. 49524 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 remain present on 04-11-2025 before the learned trial Court and to cooperate with the learned Trial Court in the proceedings without seeking any unnecessary adjournment.
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