Gujarat High Court
Electrotherm (India) Ltd. Thro ... vs State Of Gujarat on 5 August, 2025
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R/CR.A/2011/2024 JUDGMENT DATED: 05/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2011 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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ELECTROTHERM (INDIA) LTD. THRO RAVIKANT PARADKAR
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MS. SIDDHI A. OZA(14543) for the Appellant(s) No. 1
SANSKRUTI R SHUKLA(8913) for the Appellant(s) No. 1
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No.
2,3,4
MR RIYAZ R PARMAR(11846) for the Opponent(s)/Respondent(s) No. 2,3
MS. C.M. SHAH, APP for the Opponent(s)/Respondent(s) No. 1
RULE UNSERVED for the Opponent(s)/Respondent(s) No. 4
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 05/08/2025
ORAL JUDGMENT
1. The present appeal is filed by the appellant - original
complainant under Section 378 of Code of Criminal
Procedure, 1973 against the order dated 10.05.2023 passed
by the learned 5th Additional Chief Judicial Magistrate and
Senior Civil Judge, Ahmedabad (Rural) at Mirzapur
(hereinafter referred to as the "learned Trial Court") in
Criminal Case No. 1259 of 2014, whereby the learned Trial
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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. 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").
1.1 The parties are hereinafter referred to as "the
complainant" and "the accused" in the rank and file 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 is engaged in the business of
manufacturing TMT Bars and the accused no. 1 is a
partnership firm and the accused nos. 2 and 3 are the
partners of the firm. The accused had purchased good
worth Rs. 50,00,000/- from the complainant towards which
cheque no. 637089 dated 16.12.2012 of Rs. 25,00,000/-
and cheque no. 637090 dated 16.12.2012 of Rs.
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25,00,000/- from their account with HDFC Bank,
Vastrapur Ahmedabad Branch were issued by the accused.
The cheques were deposited by the complainant in his
account with Axis Bank, Vastrapur Ahmedabad Branch,
however, both the cheques were returned unpaid with the
endorsement "Payment Stopped by Drawer". The
complainant gave the demand statutory notice to the
accused which was duly served and the accused sent an
evasive reply and did not make the payment and hence, the
complainant filed a criminal complaint under Section 138
of the NI Act before the Court of the Chief Judicial
Magistrate, Ahmedabad (Rural) at Mirzapur, which was
registered as Criminal Case No. 1259 of 2014.
2.2 The learned Trial Court was pleased to consider the
affidavit, documents produced and take cognizance for the
offence under Section 138 of the N I Act and passed an
order to issue summons to the accused. The accused nos. 1
and 2 were duly served with the summons and they
appeared through their advocate but did not appear in
person and exemption applications were granted by the
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learned Trial Court. The matter was pending for service of
summons to the accused no. 3 and as the summons could
not be served to the accused no. 3, the matter was
dismissed vide an order dated 03.02.2018. The complainant
preferred Criminal Appeal No. 1960 of 2018 before this
Court and the appeal was allowed and the order of dismissal
was quashed and set aside and the matter was restored on
file of the learned Trial Court. The matter was pending for
service of warrant to the accused and by the impugned
order dated 10.05.2023, the learned Trial Court was pleased
to dismiss the complaint for want of prosecution on the part
of the complainant though the learned advocate for the
appellant was present on the day of the order.
3. Being aggrieved and dissatisfied by the impugned
order the appellant has preferred present Criminal Appeal
under Section 378 of Code of Criminal Procedure, 1973.
4. Heard learned advocate Ms. Sanskruti Shukla
appearing for the appellant, learned advocate Mr. Bhuvnesh
Gahlot for learned advocate Mr. Riyaz Parmar and learned
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APP Ms. C.M. Shah for the respondent - State.
5. Learned advocate Ms. Sanskruti Shukla 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 as on the date of the order,
the learned advocate for the appellant was present but the
learned Trial Court has not considered the same and hence,
the same may be quashed and set aside.
6. Learned APP Ms. C.M. Shah 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.
7. Learned advocate Mr. Bhuvnesh Gahlot for learned
advocate Mr. Riyaz Parmar for the respondent nos. 2 and 3
submits that the respondents have no objection if the
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matter is remanded to the learned Trial Court for trial
afresh and the respondent nos. 2 and 3 undertake to
remain present before the learned Trial Court on the date
fixed by this Court.
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
due to his death."
9. On perusal of the rojkaam produced on record by the
learned advocate for the appellant, it appears that the
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accused nos. 2 and 3 were duly served and they appeared
before the learned Trial Court on 10.04.2014 and the
vakalatnama was filed on their behalf at Exh. 4 and an
exemption application was preferred at Exh. 5. Thereafter,
as the accused did not appear, an application for issuance
of warrant was given by the complainant on 16.06.2014 and
on the same day, an application at Exh. 9 for cancellation of
warrant was given. Thereafter, the accused no. 2 did not
remain present and exemption applications at Exhs. 10, 11,
14, 15, 16, 18, 20, 21, 22 and 23 were given by the learned
advocate for the accused on the next dates of adjournments.
During this time, the matter was pending for service of
summons to the accused no. 3 and on 18.11.2014, the
complainant had preferred an application at Exh. 12 for
issuance of a warrant against the accused no. 2 and an
application at Exh. 13 to drop the proceedings against the
accused no. 3. The order passed by the learned Trial Court
on the application at Exh. 13 is "fixed for hearing" and it
appears that thereafter, no order was passed on the
application. After the matter was remanded by an order of
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this Court, the complainant appeared and paid the amount
of Rs. 2500/- as costs before the District Legal Service
Authority and the learned advocate for the complainant was
present and gave applications for issuance of warrant
against the accused no. 2 as the accused no. 2 was not
present before the learned Trial Court. Even on 10.05.2023,
the date on which the impugned order of dismissal came to
be passed, the learned advocate for the complainant was
present but the learned Trial Court, without passing any
order below Exh. 13 and without appreciating the provisions
of Section 256(1) of Code of Criminal Procedure, 1973 in
proper perspective was pleased to pass the impugned order.
It appears that the application at Exh. 13 was kept pending
and without passing an order below Exh. 13, wherein, the
proceedings against the accused no. 3 were requested to be
dropped in the interest of justice, the impugned order of
dismissal came to be passed. Hence, considering the
provisions of Section 256(1) of Code of Criminal Procedure,
1973, when the learned advocate for the complainant was
present and the presence of the complainant was not
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required, without inquiring whether the warrant was served
or unserved to the accused, and without passing an order
below Exh. 13, the impugned order came to be passed and
hence, the impugned order passed by the learned Trial
Court is illegal and perverse and the learned Trial Court has
committed an error in dismissing the matter.
10. Accordingly, the present appeal is allowed. The order
dated 10.05.2023 passed by the learned 5 th Additional Chief
Judicial Magistrate and Senior Civil Judge, Ahmedabad
(Rural) at Mirzapur in Criminal Case No. 1259 of 2014 is
hereby quashed and set aside and the complaint is restored
to its original status for trial in accordance with law.
11. The learned Trial Court is directed to decide the
complaint on its own merits after giving proper opportunity
to all the parties. As the matter is of the year 2014, the
parties are directed to remain present before the learned
Trial Court on 08.09.2025 and to cooperate with the learned
Trial Court in conducting the matter without seeking any
unnecessary adjournment.
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12. Record and proceedings, if any, be sent to the learned
Trial Court forthwith.
Sd/-
(S. V. PINTO,J)
VASIM S. SAIYED
