Gujarat High Court
Dineshbhai Dhanjibhai Sorathiya vs State Of Gujarat on 11 February, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2054 of 2021
(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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DINESHBHAI DHANJIBHAI SORATHIYA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR VIRAL V DAVE(3846) for the Appellant(s) No. 1
MR BHARGAV PANDYA, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED BY DS 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 judgment and
order dated 12.11.2021 passed by the learned 10 th Additional Chief
Judicial Magistrate, Surat in Criminal Case No. 3616 of 2017,
whereby the trial Court has dismissed the Criminal Case for want
of prosecution as the original complainant did not remain present
under the provisions of Section 256(3) of Cr.P.C. and the original
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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 Balaji Sales
Corporation and the accused is the proprietor of Shri Tirupati
Metallic and the accused had purchased goods from the appellant
vide Bill No. 7 dated 29.08.2016 for Rs.1,03,835/- and Bill No. 8
dated 20.09.2016 for Rs.1,99,361/- towards which the accused had
issued cheque No. 084576 dated 16.10.2016 for Rs.1,03,835/- and
cheque No. 084562 dated 25.10.2016 for Rs.1,99,360/- of his
account with The Surat Peoples Cooperative Bank Ltd., Sachin
Branch, Surat. The appellant deposited cheque No. 084576 in his
account with IDBI Bank, Katargam Branch, Surat and the cheque
was returned with the endorsement "Funds Insufficient". The
appellant gave the demand statutory notice through his advocate
on 14.12.2016 which was duly served to the accused on
15.12.2016, but the accused did not repay the amount and hence
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the appellant filed the complaint under Section 138 of the N.I.Act,
before the Chief Judicial Magistrate, Surat.
2.2. The learned 2nd Additional Chief Judicial Magistrate.
Surat was pleased to consider the affidavit, documents produced
vide a list at exhibit 3 and examination in chief of the appellant
produced at exhibit 4 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
accused did not appear before the learned Trial Court and the
matter was pending for bailable warrant and thereafter non
bailable warrant which could not be served on the accused. By an
order dated 12.11.2021, the learned 10 th Additional Chief Judicial
Magistrate Surat was pleased to dismiss the complaint for want of
prosecution on the part of the complainant.
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.
4. Heard learned advocate Mr. Viral V. Dave appearing for
the appellant and learned APP Mr. Bhargav Pandya for the
respondent - State. Though served the respondent No. 2 has not
appeared either in personal or through an advocate.
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5. Learned advocate Mr. Viral V. Dave 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 judgment and therefore, the same may be
quashed and set aside.
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. 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 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."
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
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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 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
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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. On scrutiny of the record and proceeding of the learned
Trial Court it transpires that after the summons were duly served
to the accused the bailable warrant was issued to the accused at
the same address but the same returned unserved with the
endorsement that the accused was not found at the given address
and hence the new address of the accused was to be supplied by
the appellant. The rojkam reflects that the appellant was present
before the learned Trial Court on 11.01.2017, 10.04.2018,
21.06.2018 and 28.08.2018 and on 03.10.2018. The matter was
transferred from the Court of the learned 9th Additional Chief
Judicial Magistrate, Surat to the Court of the 13th Additional Chief
Judicial Magistrate, Surat vide District Court Office Order No. 1362
of 2018 and the matter was posted on 09.11.2018. The learned
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advocate for the appellant remained present and a Non Bailable
Warrant as per the order passed below exhibit 7 was issued against
the accused. The learned advocate for the appellant was present
on 19.11.2018, 20.12.2018, 02.02.2019, 02.04.2019 and
30.05.2019. The rojkam on 15.03.2019 is incomplete does not
reflect whether the learned advocate for the appellant was present
or not. On 30.05.2019 the learned advocate for the appellant was
present but the learned Trial Court passed an order below exhibit 1
to keep the case on Dormant File as per Para 211 of the Criminal
Manual and to strike out the case from the Monthly Statements. A
notice was thereafter issued to the appellant on 27.10.2021
directing the appellant to remain present on the date of
adjournment 11.11.2021 and as per the endorsement of the
concerned summons serving officer of Katargam Police Station on
enquiry at the given address the appellant was not present and
hence the appellant was contacted on his mobile number
9825921977 and the appellant had stated that he had gone to his
home town and would not be able to remain present on the date of
adjournment. The rojkam does not reflect whether the matter was
taken up on 11.11.2019 and whether the learned advocate for the
appellant was present or not and thereafter on the next day i.e. on
12.11.2019 the learned Trial Court was pleased to pass the
following order :
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ORDER
"The present complaint is hearby dismissed for want of prosecution
on the part of complainant and is hereby disposed of accordingly."
12/11/2021 Sd/- (illegible)
Surat 10th additional. Chief Judicial Magistrate
Surat
10. In light of the above settled principles of law it appears
that the learned Trial Court has passed the order on 12.11.2019,
whereas the notice was issued to the applicant when the matter
was placed on the dormant file for the adjourned date 11.11.2019,
but the rojkam does not reflect whether the matter was taken up on
11.11.2019. The learned Trial Court ought to have considered that
the notice was for the applicant to remain present on 11.11.2019
and the applicant had gone to his home town and the notice itself
reflects that the applicant was contacted on the mobile and he had
stated that he would not be able to remain present on 11.11.2019,
but the learned Trial Court has passed the impugned order on
12.11.2019 and dismissed the complaint.
11. Considering the facts and circumstances of the case
and considering the observations made in the decision of the
Hon'ble Apex Court and this Court referred hereinabove, this Court
is of the opinion that the present appeal is required allowed and
the matter is to be remanded back to the learned Trial Court for
reconsideration.
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12. Accordingly, the present appeal is allowed. The order
dated 12.11.2021 passed by the learned 10th Additional Chief
Judicial Magistrate, Surat in Criminal Case No. 3616 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)
F.S.KAZI
