Gujarat High Court
Shri Baroda Municipal Corporation ... vs State Of Gujarat on 2 April, 2025
NEUTRAL CITATION
R/CR.A/1137/2023 ORDER DATED: 02/04/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1137 of 2023
=================================================================
SHRI BARODA MUNICIPAL CORPORATION EMPLOYEES UNION THRO
RAMESHBHAI RAMSINHBHAI THAKOR (DECD.)
Versus
STATE OF GUJARAT & ANR.
==================================================================
Appearance:
MR NAYAN L GUPTA(11798) for the Appellant(s) No. 1
MR HANNAN A QURESHI(11351) for the Opponent(s)/Respondent(s) No. 2
MR RJ GOSWAMI(1102) for the Opponent(s)/Respondent(s) No. 2
MS. DHWANI TRIPATHI, APP for the Opponent(s)/Respondent(s) No. 1
==================================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 02/04/2025
ORAL ORDER
1. The present appeal is filed by the appellant - original complainant
under Section 419(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023
(for short "BNSS") seeking leave to file an appeal against the order dated
17.02.2023 passed by the Court of learned Special Judge, NIA, Special
Court, Vadodara (hereinafter referred to as the "learned Trial Court") in
Criminal Case No. 63589 of 2013, whereby the learned Trial Court has
dismissed the Criminal Case for want of prosecution as the applicant did
not remain present under the provisions of Section 256(3) of Cr.P.C. and
the respondent - original accused came to be acquitted from the offence
under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter
referred to as 'the NI Act").
NEUTRAL CITATION
R/CR.A/1137/2023 ORDER DATED: 02/04/2025
undefined
1.1 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.
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 appellant was the President of Baroda Municipal Corporation
and the respondent No. 2 was working as a General Secretary and was
looking after the income and expenditure and had misappropriated an
amount of Rs.2,90,393/-. When the amount was demanded from the
respondent No.2, the respondent No. 2 gave cheque No. "000154" for
Rs.75,000/- dated 15.07.2023 and the applicant had deposited the cheque
in his bank account but the same returned unpaid with the endorsement "
"Payment Stopped by the Drawer". The demand statutory notice was
given which was duly served to the respondent No. 2 but an evasive
reply was given and the amount was not paid and hence, the complaint
was filed under Section 138 of the NI Act before the Court of the Chief
Judicial Magistrate, Vadodara, which was registered as Criminal Case
No. 63589 of 2013.
2.2 The respondent No.2 appeared before the learned Trial Court and
the entire evidence was taken on record and the matter was posted for
recording of the further statement of the respondent No. 2 under Section
313 of the Code of Criminal Procedure, 1973. The further statement of
NEUTRAL CITATION
R/CR.A/1137/2023 ORDER DATED: 02/04/2025
undefined
the respondent No. 2 was recorded on 19.10.2022 and the matter was
pending for the arguments of the learned advocates for the parties but
without considering that the entire evidence was already on record, the
learned Special Judge, NI Act, Special Court, Vadodara by an order dated
17.02.2023, was pleased to dismiss the complaint under Section 256 of
the Code of Criminal Procedure, 1973 and acquit the respondent No. 2
from the offence under Section 138 of the NI Act.
3. Being aggrieved and dissatisfied by the impugned order, the
appellant has preferred present appeal under Section 378 of the Code of
Criminal Procedure, 1973.
4. Heard learned advocate Mr. Nayan L. Gupta appearing for the
appellant, learned advocate Mr. Hannan A Qureshi for learned advocate
Mr. R.J.Goswami for the respondent No.2 and learned APP Ms. Dhwani
Tripathi for the respondent - State.
5. Learned advocate Mr. Nayan L. Gupta for the appellant submits
that the learned Trial Court has failed to appreciate the facts and
provisions of law in proper perspective and therefore the impugned
judgment is unsustainable and bad in law. Learned advocate further
submits that due to a bonafide mistake, the advocate of the appellant did
not remain present on the date of passing of the impugned order and
therefore, the same may be quashed and set aside.
NEUTRAL CITATION
R/CR.A/1137/2023 ORDER DATED: 02/04/2025
undefined
6. Learned APP Ms. Dhwani Tripathi for the respondent -state and
learned advocate Mr. Qureshi appearing for the respondent No. 2 have
submitted that after recording the absence of applicant, 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 have
urged this Court to dismiss the present appeal.
7. 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."
8. 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:
NEUTRAL CITATION
R/CR.A/1137/2023 ORDER DATED: 02/04/2025
undefined
"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."
8.1 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 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
NEUTRAL CITATION
R/CR.A/1137/2023 ORDER DATED: 02/04/2025
undefined
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.
( 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."
9 Upon a detailed examination of the record and proceedings of the
learned Trial Court, prima- facie, it appears that the case was dismissed
for default due to the absence of representation on behalf of the Baroda
NEUTRAL CITATION
R/CR.A/1137/2023 ORDER DATED: 02/04/2025
undefined
Municipal Corporation following the demise of Mr. Rameshbhai R.
Thakore. However, considering that the applicant is now representing the
corporation and in light of the settled legal principles laid down by the
Apex Court, it is apparent that the learned Trial Court erred in dismissing
the matter despite the evidence of the appellant is evident on record.
10. Therefore, this Court finds it just and proper to allow the present
appeal. Consequently, the order dated 17.02.2023, passed by the learned
Special Judge (NIA), Special Court, Vadodara, in Criminal Case No.
63589 of 2013, is quashed and set aside, and the complaint is restored to
its original status for adjudication on merits.
11. The learned Trial Court is directed to proceed with the trial in
accordance with the law, ensuring a fair opportunity for all parties.
Further, all parties are expected to cooperate with the Trial Court and
refrain from seeking unnecessary adjournments to facilitate the
expeditious disposal of the case.
(S. V. PINTO,J)
VVM
