Gujarat High Court
Natwarlal Patel S/O Samubhai vs Mahendra Dhanjibhai Patel on 15 July, 2025
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R/CR.A/1274/2025 JUDGMENT DATED: 15/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1274 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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NATWARLAL PATEL S/O SAMUBHAI
Versus
MAHENDRA DHANJIBHAI PATEL & ANR.
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Appearance:
MR PREM D DAVE(10958) 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
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 15/07/2025
ORAL JUDGMENT
1. Learned advocate Mr. Jainam Shah has appeared on
behalf of the respondent no. 1 and upon instructions seeks
permission to file his appearance.
2. The present appeal is filed by the appellant - original
complainant under Section 419(4) of the Bharatiya Nagrik
Suraksha Sanhita, 2023 (for short "BNSS") against the
order passed by the learned Judicial Magistrate First Class
(First Court), Surat (hereinafter referred to as the "learned
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Trial Court") in Criminal Case No. 20033 of 2010 on
14.10.2024, 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 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 applicant and the respondent No.1 were known to
each other and the applicant gave an amount of
Rs.5,00,000/- as hand loan to the respondent No.1 towards
which the respondent No.1 issued cheque No. 239947
dated 21.09.2009 from his account with the HDFC Bank,
Surat Branch. The cheque was deposited by the applicant
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in his account and the said cheque returned unpaid with
the endorsement "Account Closed". The demand statutory
notice was given, which was refused by the respondent
No.1 and the amount was not paid within stipulated time,
and hence, the applicant filed the complaint under Section
138 of N.I.Act before the Court of the Chief Judicial
Magistrate, Surat, which came to the registered as Criminal
Case No.20033 of 2010.
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 to accused
but he did not appear, and bailable and non-bailable
warrants were issued but the same could not be served.
The appellant had filed the affidavit of examination in chief
and the matter was pending for service of warrant and
cross examination of the appellant but by an order dated
14.10.2024, the learned Trial Court was pleased to dismiss
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the complaint for want of prosecution on the part of the
complainant.
4. Being aggrieved and dissatisfied by the impugned
order the appellant has preferred the present Criminal
Appeal under Section 419 of BNSS.
5. Heard learned advocate Mr. Prem Dave appearing for
the appellant, learned advocate Mr. Jainam Shah for the
respondent no. 1 and learned APP Mr. Pranav Dhagat for
the respondent - State.
6. Learned advocate Mr. Prem Dave 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 -
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State and learned advocate Mr. Jainam Shah for the
respondent No. 1 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.
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
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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:
"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."
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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 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
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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."
10. On scrutiny of the rojkam produced on record by the
learned advocate for the appellant, it transpires that the
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appellant had filed the complaint on 03.02.2010 and the
affidavit of examination-in-chief was also filed by the
appellant. The respondent No.1 was duly served with the
summons and after the respondent No.1 appeared before
the learned Trial Court, the plea of the applicant was
recorded at Exh.6 and evidence including the affidavit of
examination-in-chief of the applicant was filed on record at
Exh. 21 and all the necessary documents were produced at
Exh. 25 to Exh. 29. The respondent No.1 did not regularly
appear before the learned Trial Court and did not cross-
examine the applicant and hence, on a number of
occasions, bailable and non-bailable warrants came to be
issued. If the rojkam is perused, it appears that for a long
time, the respondent No.1 was successful in avoiding the
service of bailable and non-bailable warrants issued against
him and during this time, the matter was transferred from
one Court to another Court. The applicant was present on a
number of occasions and on 14.10.2024, the learned Trial
Court was pleased to pass the impugned order and dismiss
the complaint under Section 256 of the Code of Criminal
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Procedure, 1973. The learned Trial Court did not consider
that the affidavit of examination-in-chief and other
documentary evidences were already on record and duly
exhibited and without considering the same, has passed the
impugned order of dismissal on the ground of non-
prosecution.
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.
13. Accordingly, the present appeal is allowed. The order
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passed by the learned Judicial Magistrate First Class (First
Court), Surat in Criminal Case No. 20033 of 2010 on
14.10.2024 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.
(S. V. PINTO,J)
VASIM S. SAIYED
