Gujarat High Court

Brij Bihari Chandrikaprasad Jaiswal vs State Of Gujarat on 28 July, 2025

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                            R/CR.A/1022/2025                                 JUDGMENT DATED: 28/07/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                             R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1022 of 2025


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MS. JUSTICE S.V. PINTO                               Sd/-
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                                    Approved for Reporting                  Yes           No
                                                                                          No
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                                           BRIJ BIHARI CHANDRIKAPRASAD JAISWAL
                                                           Versus
                                                  STATE OF GUJARAT & ANR.
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                       Appearance:
                       MR JIGAR L PATEL(11596) for the Appellant(s) No. 1
                       MS. CHETNA SHAH, 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 : 28/07/2025
                                                        ORAL JUDGMENT

1] The present appeal is filed by the appellant - original complainant

under Section 419(4) of the Code of Criminal Procedure, 1973 (for short

"Cr. P.C.") against the order dated 27.06.2024 passed by the learned

Judicial Magistrate First Class, Surat (hereinafter referred to as the

"learned Trial Court") in Criminal Case No. 30343 of 2021, 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(3) of Cr.P.C. and the respondent No. 2 - original accused

came to be acquitted from the offence under Section 138 of the

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Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI

Act").

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 filed a complaint against the accused under

Section 138 of the Act, as the accused had taken a friendly loan of

₹8,00,000/- from the applicant and a promissory note has been executed

and the accused had issued cheque No.000019 for the amount of

₹8,00,000/- dated 28.12.2020 from his account with Bank of Baroda,

Surat Branch. The applicant deposited the cheque on 08.01.2021 in his

bank account and the cheque was dishonored and the reason mentioned in

the return memo dated 16.01.2021 was "Funds Insufficient". The

applicant sent the statutory demand notice to the accused on 01.02.2021

by R.P.A.D which was duly served on 02.02.2021 and no payment was

made and hence the applicant filed the criminal complaint before the

Court of the Chief Judicial Magistrate, Surat under Section 138 of the NI

Act, 1881 which was registered as Criminal Case no. 30343 of 2021.

2.2] The learned Trial Court was pleased to consider documents

produced and took cognizance for the offence under Section 138 of the

NI Act and issued summons to the accused.








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2.3] The Summons was duly served and the matter was pending for

cross examination and as the applicant or his advocate did not remain

present, by an order dated 27.06.2024, the learned Trial Court was

pleased to pass an order under Section 256 of The Code of Criminal

Procedure and dismiss the complaint.

3] Heard learned advocate Mr. Jigar L. Patel appearing for the

appellant and learned APP Ms. Chetna Shah for the respondent No. 1 -

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

appear through an advocate or in person.

4] Learned advocate Mr. Jigar L. Patel 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 bona-fide mistake, the advocate of the appellant did

not remain present on the date of passing of the impugned order and

therefore, the same may be quashed and set aside.

5] Learned APP Ms. Chetna Shah for the respondent No. 1 - 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 have urged this Court to dismiss the present

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appeal.

6] 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 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."

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 Section 256 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

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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."

7.1] 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

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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 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."

8] On scrutiny of the record and proceedings and document produced

on record, it transpires that the summons was duly served and the matter

was pending for cross examination and as the applicant or his advocate

did not remain present, by an order dated 27.06.2024, the learned Trial

Court was pleased to pass an order under Section 256 of The Code of

Criminal Procedure dismissing the complaint of the applicant for want of

prosecution and acquitted the accused from the offence under Section 138

of the N.I.Act.

9] It is pertinent to note that the matter was pending for service of non

bailable warrant but the learned trial Court without appreciating the facts

on record, passed the impugned order. In light of the settled principle of

law of the Apex Court in M/s BLS Infrastructure Limited (supra), and