Gujarat High Court

Chetan Mahendarbhai Shah vs State Of Gujarat on 24 July, 2025

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                            R/CR.A/1226/2025                                          JUDGMENT DATED: 24/07/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                             R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1226 of 2025


                       FOR APPROVAL AND SIGNATURE:


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

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                                                  CHETAN MAHENDARBHAI SHAH
                                                            Versus
                                                   STATE OF GUJARAT & ANR.
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                       Appearance:
                       MR SHUBHAM K PRAJAPATI(10761) for the Appellant(s) No. 1
                       MR MUKESH M SHAH(5642) for the Opponent(s)/Respondent(s) No. 2
                       MR. PRANAV DHAGAT, APP for the Opponent(s)/Respondent(s) No. 1
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                          CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                                                               Date : 24/07/2025

                                                               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

05.08.2023 passed by the learned Additional Chief

Metropolitan Magistrate, N.I. Act Court No. 30, Ahmedabad

(hereinafter referred to as the "learned Trial Court") in

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Criminal Case No. 7117 of 2019, 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 herein are

known to each other since last five years and having

business transaction. The applicant and the respondent

No.2 had entered into a Partnership Deed in the name and

style of M/s. B.R.Food Products. The respondent No.2 was

in need of some finance and the applicant gave an amount

of Rs.20,00,000/- by cheque No.000039 dated 31.01.2015

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and cheque No.000040 dated 02.02.2025 from his account

with HDFC Bank, Dharnidhar Branch. As a part repayment

of the above dues, the respondent No.2 had issued cheque

Nos.015379 and 015380 dated 03.12.2018 drawn on

Saraswat Bank, Isanpur Branch. The cheques were

deposited by the applicant in his account with HDFC Bank,

Dharnidhar Branch and the said cheques returned unpaid

with the endorsement "Funds Insufficient". The demand

statutory notice was given which was duly served to the

respondent No.2 but no reply was given and the amount

was not repaid and hence, the applicant filed a criminal

complaint under Section 138 of the N.I.Act before the Court

of learned Metropolitan Magistrate, N.I.Act Court No.30,

Ahmedabad which culminated into Criminal Case No.7117

of 2019.

3.2 The learned Trial Court was pleased to consider the

affidavit, documents produced and examination in chief of

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 which was duly served to accused

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and the accused appeared before the learned Trial Court

and his plea was recorded. The appellant had filed the

affidavit of examination in chief and the matter was pending

for cross examination of the appellant. By an order dated

05.08.2023, 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 419 of Bharatiya Nagarik Surakhsha Sanhita,

2023.

5. Heard learned advocate Mr. Shubham Prajapati

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. Shubham Prajapati for the

appellant has submitted that the learned Trial Court has

failed to appreciate the facts and provisions of law in proper

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perspective and therefore, the impugned order is

unsustainable and bad in law. Learned advocate further

submits that the learned Trial Court has not appreciated

the evidence on record and 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

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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 Section256 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

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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."

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

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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 has been ignored while

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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 rojkam produced on record by the

learned advocate for the appellant, it transpires that the

affidavit of the examination-in-chief of the appellant was on

record and the plea of the accused was recorded and the

documents produced by the appellant were duly exhibited

and the matter was pending for cross-examination of the

appellant. On 05.08.2023, the learned Trial Court was

pleased to pass the impugned order of dismissal on the

ground of non-prosecution.

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

dismissed for want of prosecution. In light of the settled

principle of law of the Apex Court in M/s BLS