Gujarat High Court

Jashvantsinh Laxmansinh Zala vs State Of Gujarat on 22 July, 2025

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                            R/CR.A/1252/2025                                         JUDGMENT DATED: 22/07/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                             R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1252 of 2025


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MS. JUSTICE S.V. PINTO
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                                    Approved for Reporting                                        No

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                                                JASHVANTSINH LAXMANSINH ZALA
                                                            Versus
                                                   STATE OF GUJARAT & ANR.
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                       Appearance:
                       MR CHINTAN S POPAT(5004) for the Appellant(s) No. 1
                       BAILABLE WARRANT NOT RECEIVED BACK for the
                       Opponent(s)/Respondent(s) No. 2
                       MR. PRANAV DHAGAT, 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 : 22/07/2025

                                                               ORAL JUDGMENT

1. Though served, the respondent no. 2 has not appeared

either in person or through an advocate.

2. The present appeal is filed by the appellant - original

complainant under Section 419 of Bharatiya Nagarik

Surakhsha Sanhita, 2023 against the order dated

17.10.2024 passed by the learned Additional Chief Judicial

Magistrate, Gir Somnath at Kodinar (hereinafter referred to

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as the "learned Trial Court") in Criminal Case No. 511 of

2018, whereby the learned Trial Court has dismissed the

Criminal Case for want of prosecution as the appellant did

not remain present under the provisions of Section 256 of

Code of Criminal Procedure, 1973 (for short "Cr.P.C.") and

the respondent No. 2 - original accused came to be

acquitted from the offence under Section 138 of the

Negotiable Instruments Act, 1881 (hereinafter referred to as

'the N I Act").

2.1 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.

3. The brief facts culled out from the memo of the present

appeal as well as the record and proceedings are as under:

3.1 The applicant and the respondent No.2 were having

business relation and the respondent No.2 used to

purchase goods from the applicant and an amount of

Rs.6,09,609/- was outstanding towards which the

respondent No.2 gave cheque No.198637 from his account

with State Bank of India, Chorvad Branch. The cheque was

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deposited by the applicant in his account with State Bank

of India, Velan Branch but the cheque returned unpaid

with the endorsement "Funds Insufficient". The demand

statutory notice was given which was duly served to the

respondent No.2 but the respondent No.2 did not pay up

the amount within stipulated time and hence, the applicant

filed the criminal complaint under Section 138 of N.I.Act

before the Court of Judicial Magistrate First Class, Kodinar,

which came to be registered as Criminal Case No.511 of

2018.

3.2 The learned Trial Court was pleased to consider the

affidavit and documents produced on record took

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 to accused but he did not appear,

and bailable warrants were issued but the same could not

be served. The appellant had also taken the bailable

warrant to be served to the respondent no. 2 by RPAD

through concerned Police Station. On 17.10.2024, even

though, the learned advocate for the applicant was present

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and the matter was pending for return of the bailable

warrant, the learned Trial Court was pleased to dismiss the

complaint for want of prosecution on the part of the

complainant.

4. Being aggrieved and dissatisfied by the impugned

order the appellant has preferred present Criminal Appeal

under Section 378 of Code of Criminal Procedure, 1973.

5. Heard learned advocate Mr. Chintan Popat appearing

for the appellant and learned APP Mr. Pranav Dhagat for the

respondent - State. Though served, none has appeared on

behalf of the respondent no. 2 to make any submissions.

6. Learned advocate Mr. Chintan Popat 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

that the learned advocate for the appellant was present and

the matter was pending for return of bailable warrant and

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has passed the impugned order and hence, the same may

be quashed and set aside.

7. Learned APP Mr. Pranav Dhagat 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.

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.--

(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

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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. On scrutiny of the rojkam produced on record by the

learned advocate for the appellant, it transpires that on

17.10.2024, the matter was pending for return of the

bailable warrant served/unserved to the respondent No.2

and the learned advocate for the applicant was present

before the learned Trial Court. The respondent No.2 was

successful in avoiding the service of bailable warrants and

the learned Trial Court was pleased to pass the impugned

order of dismissal on the ground of non-prosecution.

10. It is pertinent to note that the case has been

dismissed for want of prosecution and without considering

the fact that the learned advocate for the appellant was