Gujarat High Court
Mausam Nikhilbhai Shah Owner Of Nisham ... vs State Of Gujarat on 28 July, 2025
NEUTRAL CITATION
R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 561 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
===============================================================
Approved for Reporting Yes No
√
===============================================================
MAUSAM NIKHILBHAI SHAH OWNER OF NISHAM FINANCE
Versus
STATE OF GUJARAT & ANR.
===============================================================
Appearance:
PANKEET P AUNDHIYA(9421) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED 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
===============================================================
CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 28/07/2025
ORAL JUDGMENT
1. Though the bailable warrant is served to the
respondent no.2, he has not appeared before this Court either in
person nor has engaged a lawyer to make submissions on his
behalf.
2. The present appeal is filed by the appellant - original
NEUTRAL CITATION
R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025
undefined
complainant under Section 378 of the Code of Criminal Procedure,
1973 (for short "Cr.P.C.") against the order passed by the learned
Judicial Magistrate, First Class, Shihori in Criminal Case No. 732 of
2016 on dated 19.11.2022, 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 the 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 appellant and the respondent No. 2 are hereinafter
referred to as "the complainant" and "the accused" as they 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 complainant is a money lender and doing
his business in the name of Nisham Finance. The accused had
personally contacted the complainant and had borrowed an
amount of Rs.90,000/- and as per his demand, on
NEUTRAL CITATION
R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025
undefined
21.07.2022, an amount of Rs.40,000/- was transferred by IMPS in
the bank account of the accused with State Bank of India, Bharuch
Branch and another Rs.20,000/- was given in cash on the same
day. On 29.07.2022, an amount of Rs.15,000/- was transferred by
IMPS in the bank account of the accused with State Bank of
India, Bharuch Branch and an amount of Rs. 7500/- was given by
cash and once again on 06.08.2022, an amount of Rs. 5000/-
was given by cheque no. 228284 of Ujjivan Small Finance Bank,
Bharuch and an amount of Rs. 2500/- was given in cash.
The accused had to pay interest at the rate of 1.25% per month
and was to repay the amount of Rs. 90,000/- with interest at the
rate of 1.25%. The accused returned an amount of Rs. 2850/-
and gave cheque no. 592987 dated 30.08.2022 for Rs.87,150/- his
account with State Bank of India, Bharuch Branch. The cheque
was deposited by the applicant in his a c c o u n t with,
Ujjivan Small Finance Bank, Bharuch Branch on 06.09.2022, but
the cheque returned unpaid with an endorsement "Exceeds
Arrangements". The applicant gave the statutory demand
notice through his advocate on 09.09.2022 which was
returned with an endorsement "Left" and the applicant filed the
NEUTRAL CITATION
R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025
undefined
complaint under Section 138 of the Act before the Court of the
Chief Judicial Magistrate, Bharuch.
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 but the accused did not appear before the
learned Trial Court. On 15.03.2023, the learned advocate for the
applicant submitted an application stating that the applicant was
before the Hon'ble High Court for his application of
anticipatory bail and had also submitted the case status of
the case pending before the High Court but the learned Trial
Court was pleased to dismiss the complaint under Section
256 o f t h e of the C r . P . C . for want of prosecution on the
part of the complainant.
4. Being aggrieved and dissatisfied by the impugned
judgment and order passed by the learned Trial Court dismissing
the criminal case of the present appellant - complainant for want
of prosecution, the appellant has preferred present criminal
NEUTRAL CITATION
R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025
undefined
appeal.
5. Heard learned advocate Mr.Pankeet Aundhiya for the
appellant and learned APP Mr.Pranav Dhagat for the respondent -
State. Though served, the respondent No. 2 has not appeared
either in person or through an advocate.
6. Learned advocate Mr.Pankeet Aundhiya 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 affidavit of
examination in chief was on record at exh.4 and the documentary
evidence on record but without considering the same, the
impugned order came to be passed 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
NEUTRAL CITATION
R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025
undefined
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 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:
NEUTRAL CITATION
R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025
undefined
"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 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
NEUTRAL CITATION
R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025
undefined
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 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.
NEUTRAL CITATION
R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025
undefined
(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 and the paper book filed by
the learned advocate for the appellant, it transpires that the case
was filed and the complainant submitted his affidavit of
examination-in-chief at Exh.4 and 9 documentary evidences, vide
list at Exh.3, the complainant also gave an application at Exh.5 for
exhibiting the documents, and the summons were duly served to
the accused . The accused appeared before the learned Trial Court
on 18.10.2022 and his plea was recorded at Exh.6 and the accused
submitted that he was giving the cheque No.593013 for Rs.87,150/-
from his account with State Bank of India dated 28.11.2022, which
was the amount of the cheque, for which, the case was filed by the
complainant. The accused filed the pursis at Exh.7 and also
submitted a copy of the cheque on record, and thereafter, the
matter was pending for compromise between the parties. The
complainant had preferred Criminal Misc. Application No. 5471 of
2023 under Section 438 of the Cr.P.C. before this Court and on
NEUTRAL CITATION
R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025
undefined
12.04.2023, the learned advocate for the complainant was present
and had produced an adjournment application at Exh.10 and
document vide a list at Exh.11. The learned Trial Court was
pleased to reject the application for adjournment and was pleased
to pass the impugned order below Exh.1 and dismiss the case
under section 256 of the Cr.P.C. without appreciating the entire
evidence on record.
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 Infrastructure Limited (supra), it
appears that the trial Court has committed an error in dismissing
the matter even though the evidence of the appellant was on
record.
12. Considering the facts and circumstances of the case
and considering the observations made in the decision of the
Apex Court and this Court referred hereinabove, this Court is of
the considered opinion that the present appeal is required allowed
and the matter is to be remanded back to the learned Trial Court
for trial on merits.
NEUTRAL CITATION
R/CR.A/561/2025 JUDGMENT DATED: 28/07/2025
undefined
13. Accordingly, the present appeal is allowed. The order
passed by the learned Judicial Magistrate, First Class, Shihori in
Criminal Case No. 732 of 2016 on dated 19.11.2022 is hereby
quashed and set aside and the complaint is restored to its original
status for trial in accordance with law.
14. The learned Trial Court is directed to decide the
complaint on its own merits after giving proper opportunity to all
the parties. The parties are directed to cooperate with the learned
Trial Court in the proceedings without seeking any unnecessary
adjournment.
Sd/-
(S. V. PINTO,J)
F.S. KAZI
