Gujarat High Court

Mahendra Balkrishna Vyas vs State Of Gujarat on 12 February, 2025

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                             R/CR.MA/15571/2024                             ORDER DATED: 12/02/2025

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                               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                               R/CRIMINAL MISC. APPLICATION NO.15571 of 2024
                                          (FOR LEAVE TO APPEAL)
                                                    In
                                    F/CRIMINAL APPEAL NO. 29270 of 2024

                        =============================================
                                                    MAHENDRA BALKRISHNA VYAS
                                                              Versus
                                                     STATE OF GUJARAT & ANR.
                        =============================================
                        Appearance:
                        MR. ALTAF Y CHARKHA(7271) for the Applicant(s) No. 1
                        MR P P MAJMUDAR(5284) for the Respondent(s) No. 2
                        MR SURAJ B MATIEDA(10499) for the Respondent(s) No. 2
                        MS JIRGA JHAVERI, APP for the Respondent(s) No. 1
                        =============================================

                         CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                                                        Date : 12/02/2025

                                                          ORAL ORDER

1. The present application is filed by the applicant -

original complainant under Section 378(4) of the Code of

Criminal Procedure, 1973 (for short "Code") seeking leave to file

an appeal against the judgment and order dated 29.05.2024

passed by the learned Additional Chief Judicial Magistrate,

Godhra (hereinafter referred to as 'the learned Trial Court') in

Criminal Case No. 96 of 2021, whereby 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 N.I.Act").

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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 application are as under:

2.1. The complainant was known to the accused as the

accused used to frequently visit garage of the complainant and

would often take some amount on loan from the complainant.

That the accused had taken an amount of Rs.3,00,000/- from the

complainant and the complainant had withdrawn the amount

from his account with IDBI Bank, Godhra Branch and given to

the accused. Thereafter, an amount of Rs.1,60,000/- was also

taken for the treatment of the wife of the accused as she was

suffering from cancer. That on 15.07.2020, the accused returned

an amount of Rs.10,000/- in cash and gave cheque No.000046

dated 09.08.2020 for Rs.4,50,000/- of his account with the Bank

of India, Godhra Branch. The cheque was deposited by the

complainant in his account with HDFC Bank, Godhra Branch

but, the same returned unpaid with the endorsement "Funds

Insufficient" and the applicant gave the statutory demand notice

on 11.08.2020, which was duly served to the accused but, the

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accused did not repay the amount and sent a false reply on

29.09.2020. The complainant filed the complaint before the

Court of learned Chief Judicial Magistrate, Panchmahals at

Godhra under Section 138 of the N.I.Act.

2.2. The accused was duly served with the summons and

the accused appeared before the learned Trial Court and his

plea was recorded at Exh.06 and the evidence of the applicant

was taken on record. The applicant filed the closing purshis at

Exh.20 and the further statement of the accused under Section

313 of the Code was recorded. The accused filed an application

at Exh.21 to send the cheque to the FSL, which was allowed by

the learned Trial Court by an order dated 05.07.2022 and the

accused was directed to deposit an amount of Rs.10,000/- as

costs before the learned Trial Court, which was deposited by the

accused on 02.08.2022. The report of the FSL was not received

and a reminder was also sent to the FSL but, the learned Trial

Court passed an order on 29.05.2024 and dismissed the case of

the applicant under Section 256 of the Code and acquitted the

accused from the offence under Section 138 of the N.I.Act.

3. Being aggrieved and dissatisfied with the impugned

order, the applicant has preferred the present application

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seeking leave to appeal mainly stating that the applicant has

filed his evidence and the matter was pending for the report

from the FSL but, the learned Trial Court, without considering

the evidence, has passed the order of dismissal, which is

perverse and bad in law. That the leave to appeal is required to

be granted.

4. Heard learned advocate Mr.Altaf Y. Charkha for the

applicant and learned APP Ms. Jirga Jhaveri for the respondent -

State.

5. Learned advocate Mr.Altaf Charkha for the applicant

has reiterated the contents of the application and has submitted

that the rojkam reflects that the matter was pending for

receiving the FSL report and the learned Trial Court has not

considered the evidence produced by the applicant on record

and the order is bad in law, and hence, the leave to appeal must

be granted.

6. Learned APP Ms. Jirga Jhaveri for the respondent

State has submitted that as per the record, though the evidence

of the complainant was on record, the same has not been

considered, and hence, appropriate order may be passed in the

interest of justice.

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7. With regard to the facts of the present case, it would

be appropriate to refer 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 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:

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"(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 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

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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 perusal of the documents produced along with the

application, considering the arguments advanced by the learned

advocate for the applicant, the evidence of the applicant is on

record and the applicant has filed the closing purshis at Exh.20

and the further statement of the accused under Section 313 of

the Code has been recorded on 18.09.2021. On 11.10.2021, the

accused preferred an application Exh.21 for sending the cheque

in question to the FSL, which has been allowed by the learned

Trial Court by an order dated 05.07.2022 and the accused was

directed to deposit an amount of Rs.10,000/- with the Nazir of

the Court of Chief Judicial Magistrate, Godhra and accordingly,

the same was deposited by the accused on 02.08.2022. The