Gujarat High Court

Yogeshkumar Hariprashad Garg vs Lalit Jitendra Joshi on 28 July, 2025

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                            R/CR.A/1533/2025                                         JUDGMENT DATED: 28/07/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                             R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1533 of 2025


                       FOR APPROVAL AND SIGNATURE:


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

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                                               YOGESHKUMAR HARIPRASHAD GARG
                                                             Versus
                                                  LALIT JITENDRA JOSHI & ANR.
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                       Appearance:
                       MR SADDAMHUSSAIN A CHAUHAN(11883) for the Appellant(s) No. 1
                       BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 1
                       MR. PRANAV DHAGAT, APP for the Opponent(s)/Respondent(s) No. 2
                       RULE SERVED for the Opponent(s)/Respondent(s) No. 1
                       ==========================================================

                         CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                                                               Date : 28/07/2025

                                                               ORAL JUDGMENT

1. Though bailable warrant served, the respondent no. 1

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

01.04.2025 passed by the learned Additional Chief Judicial

Magistrate, Dahod (hereinafter referred to as the "learned

Trial Court") in Criminal Case No. 4546 of 2024, whereby

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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.

1 - 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. 1 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 appellant and the accused were known to each

other as they were friends and as the accused was in need

of some financial assistance for renovation of his house, the

appellant had given Rs. 2,60,000/- in piecemeal. The

accused issued cheque no. 017295 for Rs.2,60,000/- dated

30.06.2024 from his account with Union Bank, Dahod

Branch. The cheque was deposited on 22.08.2024 in the

bank of the appellant which returned unpaid with the

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endorsement "Insufficient Funds". The appellant gave the

statutory demand notice on 20.09.2024 which was duly

served to the accused and no payment was made hence the

appellant filed the complaint under Section 138 of the NI

Act before the Court of Additional Chief Judicial Magistrate,

Dahod which was registered as Criminal Case No. 4546 of

2024.

3.2 The learned Trial Court was pleased to consider the

the documents produced and took cognizance for the

offence under Section 138 of the NI Act and issued

summons to the accused which was duly served to accused

but the accused did not remain present before the learned

Trial Court and the learned Trial Court had issued warrant

but the same returned unserved and by an order dated

01.04.2025, the learned Trial Court was pleased to pass an

order under Section 256 of The Code of Criminal Procedure

and dismiss the complaint.

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.

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5. Heard learned advocate Mr. Saddamhussain Chauhan

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. 1 to make any

submissions.

6. Learned advocate Mr. Saddamhussain Chauhan 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

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

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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 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:

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"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 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

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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)

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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 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

produced at Exh. 4 and the documents produced by the

appellant were duly exhibited and the matter was pending

for serving of bailable warrant. On 25.02.2025, the learned

Trial Court was on leave and on 01.04.2025, as the learned

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advocate for the appellant was not present, the learned Trial

Court has passed the impugned order dismissal on the