Gujarat High Court

Vimalbhai Bhagvanbhai Agrawal ... vs State Of Gujarat on 12 February, 2025

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                             R/CR.MA/2975/2025                              ORDER DATED: 12/02/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 2975 of
                                                    2025

                                             In F/CRIMINAL APPEAL NO. 38582 of 2024
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                             VIMALBHAI BHAGVANBHAI AGRAWAL PROPRIETOR OF HARIOM
                                                    TEXTILE
                                                     Versus
                                           STATE OF GUJARAT & ANR.
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                       Appearance:
                       MR. JIGNESH J. JANI(16031) for the Applicant(s) No. 1
                       MS. JIRGA JHAVERI, APP for the Respondent(s) No. 1
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                          CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                                                        Date : 12/02/2025
                                                         ORAL ORDER

1. The present application is filed by the appellant - original complainant

under Section 378(4) of the Code of Criminal Procedure, 1973 (for short

"Cr.P.C.") seeking leave to appeal against the judgment and order dated

05.10.2023 passed by the learned 5 th Additional Senior Civil Judge &

Judicial Magistrate First Class, Surat in Criminal Case No. 18418 of

2022, whereby the learned 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

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

under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter

referred to as 'the NI Act").







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                             R/CR.MA/2975/2025                               ORDER DATED: 12/02/2025

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                       1.1      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 applicant is the proprietor of Hari Om Textiles and the accused

is the proprietor of Vedant Fab and they both were into the business of

fancy sarees and dress materials. That from March, 2018 to June, 2018

the accused had purchased Sarees from the applicant and an amount of

Rs.11,05,290/- was outstanding, towards which, the accused gave cheque

bearing No. "001521" dated 30/08/2021 of his account of Kotak

Mahindra Bank Limited, Vrajbhumi Apartment Branch, Surat. The

applicant deposited the said cheque in his account with Nutan Nagarik

Sahakari Bank Limited, Ring Road Surat Branch, and the cheque returned

unpaid with the endorsement "Drawer Signature Differs". That the

applicant gave the statutory demand notice on 29/09/2021 to the accused,

which was duly served to the accused on 30/09/2021 but the accused did

not pay the amount and hence the applicant filed the complaint under

Section 138 of the Negotiable Instruments Act, 1881 before the Court of

the Chief Judicial Magistrate, Surat.

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R/CR.MA/2975/2025 ORDER DATED: 12/02/2025

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2.2 The accused was duly served with the summons and the accused

appeared and the plea of the accused was recorded at Exh. 8 and the

evidence of the applicant was taken on record. The matter was pending

for the cross-examination of the applicant and by an order dated

05/10/2023, the learned 5th Additional Chief Judicial Magistrate First

Class, Surat was pleased to dismiss the complaint of the applicant due to

non-appearance of the complainant and acquitted the accused for the

offence U/s. 138 of the N.I.Act, 1881.

3. Being aggrieved and dissatisfied with the impugned order, the

applicant has preferred the present applicant seeking leave to appeal

mainly stating that, the order reflects that the learned advocate for the

applicant was present before the Court concerned but the learned Trial

Court has passed the impugned order, which is perverse and bad in law.

That the evidence of the complainant was on record but the same has not

been considered and in light of the settled principles of law, the leave to

appeal must be granted.

4. Heard learned advocate Mr. Jignesh J. Jani for the applicant and

learned Additional Public Prosecutor Ms. Jirga Jhaveri for the respondent

State. Though served, the respondent No. 2 has not appeared either in

person or through an advocate.








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                             R/CR.MA/2975/2025                                    ORDER DATED: 12/02/2025

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5. Learned advocate Mr. Jignesh J. Jani for the applicant has

reiterated the contents of the application and has taken this Court through

the copy of the Rojkam as also the impugned order and submits that as

the evidence of the applicant was on record, the same ought to have been

considered. Moreover, the order reflects that the learned advocate was

present before the learned Trial Court and the impugned order has been

passed, which is perverse, improper and bad in law and hence, learned

advocate for the applicant urges this Court to allow the applicant seeking

leave to appeal.

6. Learned Additional Public Prosecutor, Ms. Jirga Jhaveri for the

respondent-State has fairly submitted that looking to the impugned order

itself, the presence of the learned advocate for the applicant has been

recorded by the learned Trial Court and hence, appropriate order may be

passed in the interest of justice.

7. 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:

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R/CR.MA/2975/2025 ORDER DATED: 12/02/2025

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"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 set aside and it was directed that the prosecution would proceed from the stage where it reached before the order of acquittal was passed.

8. In light of the above judgment of the Hon'ble Apex Court in M/s.

BLS Infrastructure (Supra) and considering the copy of the Rojkam and

the impugned order, it transpires that the affidavit of the examination-in-

chief of the applicant was produced at Exh. 4 and the plea of the accused

was recorded at Exh.8 on 23-03-2023. The documents produced by the

applicant vide list at Exh. 5 were exhibited at Exh. 10 to Exh.23 on 26-

06-2023 and the matter was pending for cross-examination of the

applicant on 10-08-2023 and on 10-08-2023, the applicant or his advocate

did not remain present and the accused and his advocate were present and

the matter was adjourned to 05-10-2023. On 05-10-2023, the learned

Trial Court has observed that the learned advocate for the complainant

had appeared before this Court on 05-10-2023 but has passed the