Gujarat High Court
Mas Financial Services Ltd Thro Prakhar ... vs State Of Gujarat on 14 July, 2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1609 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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MAS FINANCIAL SERVICES LTD THRO PRAKHAR VERMA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR NEEL VASANT(13667) for the Appellant(s) No. 1
TIRTH NAYAK(8563) for the Appellant(s) No. 1
BAILABLE WARRANT NOT RECEIVED BACK for the
Opponent(s)/Respondent(s) No. 2
MR HARSH M SURTI(3907) for the Opponent(s)/Respondent(s) No. 2,3
MR SIKANDER SAIYED(3458) for the Opponent(s)/Respondent(s) No. 2,3
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 the Code of Criminal
Procedure, 1973 against the order dated 24.07.2024 passed
by the learned 24th Additional Chief Judicial Magistrate,
Ahmedabad City (hereinafter referred to as the "learned
Trial Court") in Criminal Case No. 119 of 2016, whereby the
learned Trial Court has dismissed the Criminal Case for
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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.
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 parties 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.
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 complainant - a finance company, had filed a
complaint against the accused under Section 138 of the N I
Act as the accused had taken a term loan of Rs.
83,33,333/- from the complainant and the accused issued
cheque No.000205 for the due amount of Rs. 72,30,364/-
dated 19.02.2016 from his account with The Mahesana
Urban Co-operative Bank Ltd, C.G. Road, Ahmedabad
Branch. The complainant deposited the said cheque and the
cheque returned unpaid with the endorsement "Exceeds
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Arrangement". The complainant gave the demand statutory
notice through his advocate on 14.03.2016 which was duly
served to the accused but the accused did not repay the
amount and hence, the complainant filed the complaint
under Section 138 of the N I Act before the Court of the
Chief Metropolitan Magistrate, Ahmedabad which came to
be registered as Criminal Case No. 2900119 of 2016.
2.2 The learned Trial Court was pleased to consider the
affidavit and documents produced 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.
During the pendency of the trial as the representative who
had filed the case on behalf of the company expired, an
application for substitution of the complainant was given
and the same was allowed by the learned Trial Court by an
order dated 16.11.2022. The appellant filed an application
on 22.02.2023 seeking time to file the affidavit of
examination-in-chief and the learned Trial Court was
pleased to allow the said application with a cost of
Rs.15,000/- to be paid in the Metro Legal Service
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Committee, Gheekanta, Ahmedabad. The appellant
challenged the order of imposing cost of Rs.15,000/- by the
learned Trial Court order before the City Sessions Court,
Ahmedabad by filing Criminal Revision Application No.194
of 2023. During pendency of the said revision application,
the appellant filed an application on 24.07.2024 before the
learned Trial Court stating that he was ready and willing to
deposit the amount of cost but by the impugned order, the
24th Additional Chief Judicial Magistrate, N.I.Act, Court No.
31, Ahmedabad was pleased to pass the order below Exh.1
dismissing the criminal case under Section 256 of the
Cr.P.C. for want of prosecution on the part of the
complainant.
3. Being aggrieved and dissatisfied by the impugned
order the appellant has preferred present Criminal Appeal
under Section 378(4) of Code of Criminal Procedure, 1973.
4. Heard learned advocate Mr. Tirth Nayak appearing for
the appellant, learned APP Ms. C.M. Shah for the
respondent - State and learned advocate Mr. Sikandar
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Saiyed for the respondents.
5. Learned advocate Mr. Tirth Nayak 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 learned advocate Mr. Sikandar Saiyed for the
respondents 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 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
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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:
"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
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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
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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
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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 produced by the learned
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advocate for the appellant, it transpires that the appellant
had filed the complaint and the process was issued to the
accused. The appellant had submitted an application for
substituting the complainant and the same was allowed by
the learned Trial Court vide order dated 16.11.2022.
Thereafter, the applicant filed an application on 22.02.2023
seeking time to file affidavit of examination in chief and the
learned Trial Court had allowed the said application
imposing a cost of Rs. 15,000/-. The order of imposing cost
was challenged by the complainant before the City Sessions
Court but without waiting for the revision application to be
decided by the City Sessions Judge, the impugned order has
been passed on the ground of non-prosecution under
Section 256 of Code of Criminal Procedure, 1973.
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, it appears that the trial Court has
committed an error in dismissing the matter.
11. Considering the facts and circumstances of the case
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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 24.07.2024 passed by the learned 24 th Additional
Chief Judicial Magistrate, Ahmedabad City in Criminal Case
No. 119 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.
(S. V. PINTO,J)
VASIM S. SAIYED
