Gujarat High Court
Vinodbhai Ambalal Mistry vs State Of Gujarat on 14 July, 2025
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R/CR.A/1731/2025 JUDGMENT DATED: 14/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1731 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
NO
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VINODBHAI AMBALAL MISTRY
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. RAHIL P JAIN(7305) for the Appellant(s) No. 1
MR VO JOSHI(5883) 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 : 14/07/2025
ORAL JUDGMENT
1] The present appeal is filed by the appellant - original complainant
under Section 419 of the Bharatiya Nagarik Suraksha Sanhita, 2023
against the order dated 11.07.2024 passed by the learned 11th Judicial
Magistrate, First Class, Vadodara in Criminal Case No. 32987 of 2016,
whereby, the learned trial Court dismissed the Criminal Case for want of
prosecution under the provisions of Section 256 of Cr.P.C as the
appellant - original complainant did not remain present and the
respondent no. 2 - original accused came to be acquitted from the offence
under Section 138 of Negotiable Instrument Act, 1881 (hereinafter
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referred to as "N.I.Act").
1.1] 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.
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 accused has taken a loan of Rs.4,00,000/- from the appellant
and an agreement was executed between the appellant and the accused on
07.04.2016. The accused issued cheque No. "0008624" dated 5.04.2016
for Rs.4,00,000/- from his account with Union Bank of India, Race
Course, Vadodara Branch. The appellant deposited the said cheque in his
account but the cheque returned unpaid with the endorsement "Account
Blocked". The appellant gave the demand statutory notice, which was
duly served to the accused and the accused gave an evasive reply to the
notice and did not repay the amount and hence the appellant filed a
criminal complaint under Section 138 of the NI Act, before the Chief
Judicial Magistrate, Vadodara which came to be registered as Criminal
Case No. 32987 of 2016.
2.2] 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
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an order to issue summons to the accused and the summons was duly
served to the accusd. The accused appeared before the learned trial Court
and the plea of the accused was recorded at Exh.10 and during the trial,
the talks of settlement were going on between the parties and accordingly
a pursis was filed at Exh.37. Therafter, the case was transferred from one
Court to another Court due to administrative reasons and the matter was
pending for long. By an order dated 11.07.2024, the learned 11th Judicial
Magistrate, First Class, Vadodara was pleased to dismiss the complaint
for want of prosecution on the part of the complainant.
3] Being aggrieved and dissatisfied by the impugned judgment and
order the appellant has preferred the present Criminal Appeal under
Section 419 of the BNSS, 2023.
4] Heard learned advocate Mr. Rahil Jain for the appellant, learned
advocate Mr. V.O.Joshi for the respondent No. 2 and learned APP Mr.
Pranav Dhagat, for the respondent No. 1 - State.
5] Learned advocate Mr. Rahil Jain 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
due to a bonafide mistake, the advocate of the appellant did not remain
present on the date of passing of the impugned order and therefore, the
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same may be quashed and set aside.
6] Learned APP Mr. Pranav Dhagat for the respondent No. 1 - State
and Mr. V.O.Joshi for the respondent No. 2 have jointly 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 appeal.
7] 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."
8] 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 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
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."
8.1] 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
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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.
( 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."
9] On scrutiny of the record and proceedings and Rojkam produced
on record, it transpires that the affidavit of examination-in- chief was
produced at Exh.5 and the documentary evidence was produced on
record. The respondent No.2 was duly served with the process and he
appeared and the plea of the respondent No.2 was recorded , and
thereafter, the case was transferred from one Court to another Court due
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to administrative reasons and the applicant and his advocate were
regularly appearing before the learned Trial Court. On 18.01.2024, both
the parties decided to compromise the matter and a pursis at Exh.37 was
produced and the matter was pending for compromise between the parties
and the matter was adjourned on 11.07.2024 and on that date, the learned
trial Court was pleased to pass the impugned order below Exh.1
dismissing the complaint of the applicant for want of prosecution and
acquitted the respondent No. 2 from the offence under Section 138 of the
N.I.Act.
10] It is pertinent to note that the matter was pending for compromise
between the parties but the learned trial Court without appreciating the
evidence 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 Sureshchandra Patni (Supra) it appears that the learned trial
Court has committed an error in dismissing the matter even though the
evidence of the appellant was on record.
11] This Court is of the considered opinion that the present appeal is
required to be allowed and the matter is to be remanded back to the
learned trial Court for trial on merits.
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12] Accordingly, the present appeal is allowed. The order dated
11.07.2024 passed by the learned 11th Judicial Magistrate First Class,
Vadodara, in Criminal Case No. 32987 of 2016 is hereby quashed and set
aside and the complaint is restored to its original status for trial in
accordance with law.
13] 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)
VVM
