Gujarat High Court
Vijay Harinarayan Jaiswal vs State Of Gujarat on 11 August, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2101 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
NO
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VIJAY HARINARAYAN JAISWAL
Versus
STATE OF GUJARAT & ANR.
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Appearance:
VASIMRAJA A KURESHI(8609) for the Appellant(s) No. 1
BAILABLE WARRANT NOT RECEIVED BACK for the
Opponent(s)/Respondent(s) No. 2
MR SANJAY PRAJAPATI(3227) for the Opponent(s)/Respondent(s) No. 2
MR.ROHAN SHAH, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 11/08/2025
ORAL JUDGMENT
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 passed by the learned 19 th Additional Chief
Judicial Magistrate, Vadodara (hereinafter referred to as the "learned trial
Court") in Criminal Case No. 23929 of 2017 on 06.01.2024, whereby the
learned trial Court has dismissed the Criminal Case for want of
prosecution as the appellant - original complainant did not remain present
under the provisions of Section 256 of Cr.P.C. and the respondent No. 2 -
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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 parties are hereinafter referred to 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 accused were known to each other very well
and were friends and the accused was in need of some finance had taken a
hand loan of Rs.6,65,000/- from the complainant and executed a
promissory note on 14.12.2016. Towards the outstanding amount the
accused issued cheque No.082125 dated 02.03.2017 for Rs.6,65,000/-
from his account with State Bank of India, Main Branch, Vadodara. The
cheque was deposited by the complainant in his account with Indian
Bank, Raopura, Vadodara and the said cheque returned unpaid with the
endorsement "Funds Insufficient". The complainant gave the statutory
demand notice which was duly served to the accused but no reply was
given and no payment was made within the stipulated period and hence, a
complainant filed the complaint under Section 138 of the NI Act before
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the Court of Chief Judicial Magistrate, Vadodara which was registered as
Criminal Case No. 23929 of 2017.
2.2 The learned Trial Court was pleased to consider the affidavit,
documents produced and examination in chief of the complainant 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.
The accused appeared before the learned Trial Court and the plea of the
accused was recorded at Exh.10. The complainant had filed the affidavit
of examination in chief at Exh.04, the list of documents at Exh.03 and an
application to exhibit the documents at Exh.5 which was kept for hearing.
The matter was pending for cross examination of the complainant and
was adjourned on a number of occasions and by an order dated
06.01.2024, the learned Trial Court was pleased to dismiss the complaint
for want of prosecution on the part of the complainant.
3. Being aggrieved and dissatisfied by the impugned order the
appellant has preferred the present Criminal Appeal under Section 378
Cr.P.C.
4. Heard learned advocate Mr. Vasimraja A. Kureshi for the appellant
and learned APP Mr. Rohan Shah for the respondent No. 2 - State.
Though served the respondent No.01 has not appeared either in person or
through an advocate.
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5. Learned advocate Mr. Vasimraja A. Kureshi 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 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.
6. Learned APP Mr. Rohan Shah for the respondent No. 1 - State has
submitted that after recording the absence of the appellant and 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. 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
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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 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 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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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 record and proceedings and Rojkam produced
on record, it transpires that summons has been served and the accused
appeared before the learned trial court and the plea of the accused was
recorded at Exh.10. The matter was pending for cross examination of the
complainant and was adjourned on number of occasions. The
complainant had produced all the documents relied upon vide a list at
Exh.03 and had submitted an application to exhibit the documents at
Exh.05 which was kept pending for hearing and on 22.12.2017 all the
documents were exhibited at Exh.11 to Exh.20. The complainant was
present on a number of adjournments but his cross examination was not
recorded and the accused preferred exemption applications which were
granted. The rojkam indicates that complainant was not negligent in
conducting the case before the learned trial Court and had remained
present but was not cross examined and by the impugned order dated
06.01.2024, the learned Trial Court was pleased to pass an order under
Section 256 of the Cr.P.C. and dismiss the complaint of the complainant
though the evidence of the complainant was on record.
10. It is pertinent to note that the matter was pending at the stage of
cross examination of the complainant and the documents to prove the
case against the respondent No.1 and the affidavit of examination in
Chief was on record but the learned trial Court without appreciating the
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evidence on record, passed the impugned order. 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 learned 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
06.01.2024 passed by the Court of 19th Additional Chief Judicial
Magistrate in Criminal Case No. 23929 of 2017 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 cooperate with the learned Trial Court in the proceedings
without seeking any unnecessary adjournment.
Sd/-
(S. V. PINTO,J)
VVM
