Gujarat High Court
Rameshwar Saini vs State Of Gujarat on 28 April, 2025
NEUTRAL CITATION
R/CR.A/846/2025 ORDER DATED: 28/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 846 of 2025
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RAMESHWAR SAINI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
DHRUV TOLIYA(9249) for the Appellant(s) No. 1
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No. 2
MR NIKHIL S VYAS(5663) for the Opponent(s)/Respondent(s) No. 2
MS. JIRGA JHAVERI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 28/04/2025
ORAL ORDER
1. The present appeal is filed by the appellant - original complainant
under Section 378(4) of the Code of Criminal Procedure, 1973 (for short
"Cr.P.C.") against the order dated 04.09.2024 passed by the learned
Additional Chief Metropolitan Magistrate (Negotiable Instrument Act)
Court No. 31, Ahmedabad (hereinafter referred to as the "learned Trial
Court") in Criminal Case No. 38838 of 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(3) of
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 NI Act").
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.
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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 is a senior citizen of aged year and paternal uncle of
the accused and the proprietor of "Shiv Shakti Roadlines". The appellant
had given an amount of Rs. 8,25,000/- to the accused on 05.08.2020 due
to family relations, to support him during financial difficulties caused by
the Pandemic COVID-19. The accused promised to repay the amount
within twelve months and after repeated demands of the present
appellant, he did not make any payment, but issued cheque No. 484820
for the amount of Rs.8,25,000/-. The cheque was deposited in the bank by
the applicant but the same returned unpaid with the endorsement "Non -
CTS Cheque.". The demand Statutory Notice was issued and the Accused
gave an evasive reply and did not repay the amount. The appellant filed a
Criminal Complaint under Section 138 NI Act, which came to be
registered as Criminal Case No. 38838 of 2022 before the Court of Chief
Metropolitan Magistrate, Ahmedabad. The accused was duly served and
appeared before the learned Trial Court and his plea was recorded at Exh.
6 but due to old age, health issues, and heavy rainfall in Rajasthan and
Ahmedabad during August-September 2024, the appellant could not
personally attend the court hearings but was represented by his advocate
and however, the learned Trial Court has passed the impugned order
under Section 256 of the Code of Criminal Procedure, 1973 and
dismissed the case of the appellant.
3. Being aggrieved and dissatisfied by the impugned judgment and
order the appellant has preferred present Criminal Appeal under Section
378(4) of Criminal Procedure Code.
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4. Heard learned advocate Mr. Dhurv Tolia appearing for the
appellant and learned APP Ms. Jirga Jhaveri for the respondent - State
and learned advocate Mr. Nikhil Vyas for the respondent No. 2.
5. Learned advocate Mr. Dhruv Tolia 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
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 impugned order may be quashed and set aside.
6. Learned APP Ms. Jirga Jhaveri for the respondent -state and Mr.
Nikhil Vyas for the respondent No. 2 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 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:
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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:
"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."
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
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R/CR.A/846/2025 ORDER DATED: 28/04/2025
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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 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."
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9. On scrutiny of the rojkam produced on record, it transpires that the
summons was served to the accused and the matter has been rotated but
rojkam does not reflect clearly whether the accused and the learned
advocate were present and ready to cross examine the witnesses. The
rojkam on many dates reflect that summons / bailable warrant/ non
bailable warrant has been issued and thereafter, the impugned order has
been passed.
10. It is pertinent to note that the learned advocate for the applicant had
preferred the application at Exh. 18 which was rejected by the learned
Trial Court without taking into consideration the affidavit of examination
in chief and the documentary evidence. In light of the settled principle of
law of the Apex Court in M/s BLS Infrastructure Limited (supra), and
Sureshchandra Patni (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.
11. 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.
12. Accordingly, the present appeal is allowed. The order dated
04.09.2024 passed by the learned Additional Chief Metropolitan
Magistrate, (Negotiable Instrument Act) Court No. 31, Ahmedabad in
Criminal Case No. 38838 of 2022 is hereby quashed and set aside and the
complaint is restored to its original status for trial in accordance with law.
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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 cooperate with the learned Trial Court in the proceedings
without seeking any unnecessary adjournment.
(S. V. PINTO,J)
VVM
