Gujarat High Court

Nikhil Rameshbhai Mistri vs State Of Gujarat on 11 February, 2025

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                             R/CR.A/1662/2024                                JUDGMENT DATED: 11/02/2025

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                               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                          R/CRIMINAL APPEAL NO. 1662 of 2024
                                                 (AGAINST ACQUITTAL)

                        FOR APPROVAL AND SIGNATURE:

                        HONOURABLE MS. JUSTICE S.V. PINTO                      Sd/-

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                                          Approved for Reporting                  Yes              No


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                                                    NIKHIL RAMESHBHAI MISTRI
                                                              Versus
                                                     STATE OF GUJARAT & ANR.
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                        Appearance:
                        ANURAG R RATHOR(9315) for the Appellant(s) No. 1
                        BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
                        MR BHARGAV PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
                        RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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                          CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                                                        Date : 11/02/2025

                                                        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 dated

06.10.2023 passed by the learned Judicial Magistrate First Class

(Traffic), Vadodara in Criminal Case No. 33166 of 2019, whereby

the trial Court has dismissed the Criminal Case for want of

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prosecution as the original complainant did not remain present

under the provisions of Section 256 of Cr.P.C. and the original

accused - respondent No. 2 herein came to be acquitted from the

charge levelled against him under Section 138 of the Negotiable

Instruments Act, 1881 (hereinafter referred to as 'the NI Act"). 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 is the proprietor of Samarth Industries

and the accused had demanded an amount of Rs.2,00,000/- towards

which the appellant had issued cheque No.000009 dated

21.08.2019 of his account with UCO Bank, Vadodara Branch The

appellant deposited the cheque in his account with Bank of Baroda,

Pratapnagar Vadodara Branch and the cheque was returned with

the endorsement "Funds Insufficient". The appellant gave the

demand statutory notice through his advocate on 20.09.2019 which

was duly served to the accused on by RPAD but the accused did not

repay the amount and hence the appellant filed the complaint

under Section 138 of the N.I.Act, before the Chief Judicial

Magistrate, Vadodara.

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2.2 The learned Judicial Magistrate First Class, (Traffic),

Vadodara was pleased to consider the verification and documents

produced by the appellant and take cognizance for the offence

under Section 138 of the N.I.Act and passed an order to issue

summons to the accused and the summons was duly served to the

accused. The appellant filed his examination in chief at Exh.5 and

the accused appeared before the learned Trial Court and the plea

of the accused was recorded on 25.03.2022. The matter was

pending for the cross examination of the appellant and as the

appellant did not remain present, by an order dated 06.10.2023,

the learned Judicial Magistrate First Class, (Traffic), Vadodara was

pleased to dismiss the complaint for want of prosecution and want

of appearance of the complainant.

3. Being aggrieved and dissatisfied by the impugned

judgment and order the appellant has preferred the present

Criminal Appeal under Section 378(4) of Criminal Procedure Code.

4. Heard learned advocate Mr. Anurag R. Rathor

appearing for the appellant and learned APP Mr. Bhargav Pandya

for the respondent - State. Though rule is served the respondent

No 2 has not appeared either in person or through an advocate.

5. Learned advocate Mr. Anurag R. Rathor for the

appellant has submitted that the trial Court has failed to appreciate

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the facts and provisions of law in proper perspective and therefore

the impugned judgment is unsustainable and bad in law. It was

only due to a bonafide mistake, the advocate of the appellant did

not remain present on the date of passing of the impugned

judgment and hence, the same may be quashed and set aside.

Learned advocate further submits that a false and fabricated FIR

was filed against the appellant on 17.12.2022 and thereafter the

appellant was pursuing his legal remedy by filling an anticipatory

bail application before the learned Sessions Court and the Hon'ble

High court of Gujarat. The appellant had also preferred quashing

petition before this Hon'ble Court. The appellant had preferred

anticipatory bail application before the learned Sessions Court as

Criminal Miscellaneous Application no. 2901 of 2022 on 30.12.2022

which came to be rejected on 06.01.2023. The appellant thereafter

preferred anticipatory bail application before this Hon'ble Court on

01.04.2023 and the same came to be registered on 03.04.2023 as

Criminal Misc. Application No.5772 of 2023. That this Hon'ble

Court was pleased to issue Rule in the matter on 06.06.2023

making it returnable on 13.06.2023 and by order dated 17.08.2023,

this Hon'ble Court was pleased to permit the applicant to withdraw

the application. It is submitted that the appellant had also

preferred quashing application before this Hon'ble Court on

29.03.2023 which came to be registered as 03.04.2023 as Special

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Criminal Application No.4366 of 2023 and the Hon'ble Court was

pleased to permit the appellant to withdraw the matter on

04.07.2023. That thereafter the appellant herein came to be

arrested on 13.10.2023 and subsequently he was released on

regular bail before filing of the charge sheet by this Hon'ble Court

in Criminal Misc. Application No.20389 of 2023 and the appellant

was released from the judicial custody on 13.12.2023 and therefore

when the Learned Trial Court was pleased to dismiss the matter of

the appellant, the appellant was not aware as he was in judicial

custody. Learned Advocate urges this Court to allow the appeal and

remand the matter for trial on merits before the learned Trial

Court.

6. Learned APP Mr.Bhargav Pandya 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. On perusal of the record it appears that the complaint

was filed on 25.10.2019 and the summons was issued on

25.10.2019 and the matter was adjourned to 26.12.2019. The

accused appeared on 16.03.2020 and an adjournment application

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was preferred which was granted. The case could not proceed as

the lock down due to the pandemic COVID-19 was imposed from

08.05.2020 to 09.02.2021. On 09.02.2021 summons were issued to

both the parties and as the accused did not remained present a

warrant was issued and bail was accepted. The plea of accused was

recorded on 29.01.2022 and the matter was pending for exhibiting

of documents and cross examination of the appellant. The appellant

did not remain present and his exemption was granted and non

bailable warrant was also issued against the accused. The rojkam

does not clearly reflect whether the appellant and his advocate

were present or not on the adjourned dates as the rojkam states

"present/not." On 08.04.2023 the accused gave an application to

dismiss the complaint below which an order of "Fix for the hearing

and notice to complainant" was passed but the rojkam does not

reflect whether any notice was issued on or after 08.04.2023 and

whether it was served to the appellant and thereafter without

entering into the merits of the case the learned Trial Court was

pleased to pass the order dismissing the matter on 06.10.2023.

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:--

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(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. 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 SecAon256 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."

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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."

9.1 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 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

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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."

10. On scrutiny of the record and considering the

documents submitted by the learned advocate for the appellant the

arguments deserve consideration as the appellant was in fact

pursuing his legal remedy in another case and the rojkam does no

effect whether the learned advocate for the appellant was absent.

11. In light of the settled principle of law of the Apex Court

in M/s BLS Infrastructure Limited (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.

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