Gujarat High Court
Vimalbhai Bhagvanbhai Agrawal ... vs State Of Gujarat on 14 July, 2025
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R/CR.A/554/2025 JUDGMENT DATED: 14/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 554 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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VIMALBHAI BHAGVANBHAI AGRAWAL PROPRIETOR OF HARIOM
TEXTILE
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. JIGNESH J. JANI(16031) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
MR JIGAR L PATEL(11596) for the Opponent(s)/Respondent(s) No. 2
MS. C.M. SHAH, 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 378 of Code of Criminal
Procedure, 1973 against the order dated 05.10.2023 passed
by the learned 5th Additional Judicial Magistrate First Class,
Surat (hereinafter referred to as the "learned Trial Court") in
Criminal Case No. 18418 of 2022, whereby the learned Trial
Court has dismissed the Criminal Case for want of
prosecution as the appellant did not remain present under
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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").
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 appellant is the proprietor of Hari Om Textiles and
the accused is the proprietor of Vedant Fab and they both
were into the business of fancy sarees and dress materials.
From March 2018 to June 2018, the accused had
purchased Sarees from the appellant and an amount of
Rs.11,05,290/- was outstanding towards which the accused
gave cheque No. 001521 dated 30/08/2021 from his
account with Kotak Mahindra Bank Limited, Vrajbhumi
Apartment Branch, Surat. The appellant deposited the said
cheque in his account with Nutan Nagarik Sahakari Bank
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Limited, Ring Road, Surat Branch and the cheque returned
unpaid with the endorsement " Drawer Signature Differs".
The demand notice was given to the accused on
29/09/2021 which was duly served but the accused did not
repay the amount and hence, the appellant filed a complaint
under Section 138 of the Negotiable Instruments Act, 1881
before the Court of the Chief Judicial Magistrate, Surat
which came to be registered as Criminal Case No. 18418 of
2022.
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 an order to issue
summons to the accused which was duly served to accused
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
05.10.2023, the learned Trial Court was pleased to dismiss
the complaint for want of prosecution on the part of the
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complainant.
3. Being aggrieved and dissatisfied by the impugned
order the appellant has preferred present Criminal Appeal
under Section 378 of Code of Criminal Procedure, 1973.
4. Heard learned advocate Mr. Jignesh J. Jani appearing
for the appellant, learned advocate Mr. Jigar Patel for the
respondent no. 2 and learned APP Ms. C.M. Shah for the
respondent - State.
5. Learned advocate Mr. Jignesh J. Jani 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.
6. Learned APP Ms. C.M. Shah for the respondent - State
and earned advocate Mr. Jigar Patel for the respondent no.
2 have jointly submitted that after recording the absence of
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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.
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
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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
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
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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
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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 rojkam produced on record by the
learned advocate for the appellant, it transpires that the
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affidavit of the examination-in- chief of the appellant was
produced at Exh. 4 and the plea of the accused was
recorded at Exh.8 on 23-03-2023. The documents produced
by the appellant vide list at Exh. 5 were exhibited at Exh. 10
to Exh.23 on 26-06-2023 and the matter was pending for
cross-examination of the appellant on 10-08-2023 and on
10-08-2023, the appellant or his advocate did not remain
present and the accused and his advocate were present and
the matter was adjourned to 05-10-2023. In the rojkaam,
the learned Trial Court has observed that the learned
advocate for the complainant was present before the Court
on 05-10-2023 but has passed the impugned order of
dismissal on the ground of non-prosecution.
10. 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.
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11. 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.
12. Accordingly, the present appeal is allowed. The order
dated 05.10.2023 passed by the learned 5 th Additional
Judicial Magistrate First Class, Surat in Criminal Case No.
18418 of 2022 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.
(S. V. PINTO,J)
VASIM S. SAIYED
