Gujarat High Court

Kanakadurga Finance Limited Thro ... vs State Of Gujarat on 23 June, 2025

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                               R/CR.A/1096/2025                             ORDER DATED: 23/06/2025

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                             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                              R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1096 of 2025

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                             KANAKADURGA FINANCE LIMITED THRO ASHWIN SHRIKANT
                                                 PATOLE
                                                  Versus
                                         STATE OF GUJARAT & ANR.
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                        Appearance:
                        MR PM DAVE(263) for the Appellant(s) No. 1
                        BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
                        MS PRANAV DHAGAT, APP for the Opponent(s)/Respondent(s) No. 1
                        RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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                          CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                                                        Date : 23/06/2025

                                                         ORAL ORDER

1. The present appeal is filed by the appellant - original

complainant under Section 419 of the Bhartiya Nagarik Surakasha

Sanhita, 2023 (for short "BNSS") against the order dated 08.11.2024

passed by the learned 12th Additional Chief Judicial Magistrate,

Vadodara (hereinafter referred to as the "learned Trial Court") in

Criminal Case No. 11632 of 2020, 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

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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 - original complainant is the financial

company and providing financial assistance on the old vehicles.

The appellant had filed a criminal complaint against the accused

under Section 138 of the N.I.Act as the accused had taken a loan,

against which, the outstanding amount of Rs.2,29,500/- was due

and the accused issued cheque No.021991 for Rs.2,29,500/- dated

24.02.2020 from his account with Oriental Bank of Commerce,

Patelwadi No.1, Gana, Anand Branch. The appellant deposited the

cheque and the cheque was returned unpaid on 27.02.2020 with

endorsement "Funds Insufficient". The appellant gave the demand

statutory notice through his advocate on 05.03.2020, which was

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duly served to the accused but the accused did not repay the

amount, and hence, the appellant filed the complaint under

Section 138 of the N.I.Act before the Court of learned Additional

Chief Judicial Magistrate, Vadodara.

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 not served and the accused did not appear before the

learned Trial Court. A warrant came to be issued to the accused,

which was not served. The matter was pending for service of

warrants and by an order dated 08.11.2024, the learned Trial Court

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 passed by the learned Trial Court dismissing

the criminal case of the present appellant - complainant for want

of prosecution, the appellant has preferred present criminal

appeal.

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4. Heard learned advocate Mr.P.M.Dave appearing for

the appellant and learned APP Mr.Pranav Dhagat for the

respondent - State. Though served, the respondent No. 2 has not

appeared either in person or through an advocate.

5. Learned advocate Mr.P.M.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 appellant and the learned

advocate for the appellant made all efforts to get the warrants

served and the evidence was on record but without considering

the same, the impugned order came to be passed and hence, the

same may be quashed and set aside.

6. 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.

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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:

"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:

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"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

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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 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

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case when the complainant is absent and particularly when he is represented by an Advocate."

9. On scrutiny of the record and proceeding of the

learned Trial Court, it transpires that the summons / warrants has

not been served / executed to the accused and the matter was

pending for service of warrants. The appellant produced the

evidence on record but without considering the same, the learned

Trial Court was pleased to pass the impugned order.

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.