Gujarat High Court
Hathila Babubhai Nansing vs State Of Gujarat on 17 July, 2025
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R/CR.A/1347/2025 JUDGMENT DATED: 17/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1347 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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HATHILA BABUBHAI NANSING
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR A R DWIVEDI(11319) for the Appellant(s) No. 1
NOTICE SERVED 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 : 17/07/2025
ORAL JUDGMENT
1. Though served, the respondent no. 2 has not appeared
either in person or through an advocate.
2. The present appeal is filed by the appellant - original
complainant under Section 378 of Code of Criminal
Procedure, 1973 against the order dated 17.01.2025 passed
by the learned Chief Judicial Magistrate, Dahod (hereinafter
referred to as the "learned Trial Court") in Criminal Case No.
316 of 2024, whereby the learned Trial Court has dismissed
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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. 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 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.
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 appellant and the respondent No. 2 were known
to each other and the respondent No. 2 had taken an
amount of Rs.2,00,000/- to pay his pending installments to
the finance company as he had purchased a cruiser vehicle
and as he had not paid the outstanding installments, the
vehicle was to be seized by the finance company. The
amount of Rs.2,00,000/- was demanded by the appellant
and the respondent No. 2 issued cheque No. 000011 dated
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13.12.2023 for Rs.2,00,000/- from his account with The
Panchmahal District Co. Op. Bank Limited, Dahod Branch.
The said cheque was deposited by the appellant in his
account with SBI Bank, Godi Road, Dahod Branch, but the
cheque returned unpaid with the endorsment "Funds
Insufficient". The demand statutory notice was issued to
the respondent No. 2 but no reply was sent and no
payment was made by the respondent No. 2 and hence, the
appellant has filed a complaint under Section 138 of the
N.I.Act, 1881 before the Court of the Chief Judicial
Magistrate, Dahod, which came to be registered as Criminal
Case No. 316 of 2024.
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. The appellant had filed the affidavit of
examination in chief at Exh. 6 and the plea of the
respondent No. 2 was recorded at Exh.12. Thereafter, the
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respondent No. 2 did not appear before the learned Trial
Court and on 12.11.2024, 13.12.2024 and 07.01.2025,
non-bailable warrants were issued upon the application
given by the respondent No. 2 and the learned Trial Court
was pleased to dismiss 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 present Criminal Appeal
under Section 419 of Bharatiya Nagarik Surakhsha Sanhita,
2023.
5. Heard learned advocate Mr. A.R. Dwivedi appearing for
the appellant and learned APP Mr. Pranav Dhagat for the
respondent - State. Though served, none has appeared on
behalf of the respondent no. 2 to make any submissions.
6. Learned advocate Mr. A.R. Dwivedi 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
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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 -
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 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
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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:
"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
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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 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
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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
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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
affidavit of the examination-in- chief of the appellant was
produced at Exh. 6 and the plea of the accused was
recorded at Exh. 12. Thereafter, the respondent No. 2 did
not appear before the learned Trial Court and on
12.11.2024, 13.12.2024 and 07.01.2025, non-bailable
warrants were issued upon the application given by the
respondent No. 2 and the matter was posted on 17.01.2025
for service of non-bailable warrant to the respondent No. 2
and the respondent No. 2 was successfully avoiding the
service of non-bailable warrants. On 17.01.2025, the
learned Additional Chief Judicial Magistrate was pleased to
pass the order under Exh. 1 and dismiss the complaint of
the appellant. The learned advocate for the appellant was
not present only on one occasion when the matter was
pending for service of non-bailable warrant and the
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respondent No. 2 was not present before the learned Trial
Court. The learned Trial Court has not appreciated the
affidavit of examination in chief and the documents that
were on record and even though it was the fault of the
respondent No.2 who was avoiding service of the non-
bailable warrant. The matter was pending for cross-
examination of the appellant and in the rojkaam, the
learned Trial Court has observed that the learned advocate
for the complainant was not present before the Court on
17.01.2025 and 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
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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
passed by the learned Chief Judicial Magistrate, Dahod in
Criminal Case No. 316 of 2024 dated 17.01.2025 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
