Gujarat High Court

Jayeshbhai Hashmukhbhai Soni vs State Of Gujarat on 11 September, 2025

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                             R/CR.A/2025/2024                                      JUDGMENT DATED: 11/09/2025

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                              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/CRIMINAL APPEAL NO. 2025 of 2024
                                                      (AGAINST ACQUITTAL)

                        FOR APPROVAL AND SIGNATURE:

                        HONOURABLE MS. JUSTICE S.V. PINTO                   Sd/-

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                                         Approved for Reporting                        Yes               No

                                                                                                          √

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                                                    JAYESHBHAI HASHMUKHBHAI SONI
                                                                Versus
                                                       STATE OF GUJARAT & ANR.
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                        Appearance:
                        VASIMRAJA A KURESHI(8609) for the Appellant(s) No. 1
                        BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
                        MS.C.M.SHAH, 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 : 11/09/2025

                                                          ORAL JUDGMENT

1. The present appeal is filed by the appellant -

original complainant against the order passed by the learned

13th Additional Chief Judicial Magistrate, Vadodara (hereinafter

referred to as the "learned Trial Court") in Criminal Case No.

12343 of 2021 dated 09.12.2023, whereby the learned Trial

Court has dismissed the Criminal Case for want of prosecution

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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 appellant and the respondent No.2 are

hereinafter referred to as "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 and the accsued were known to

each other and the accused had taken a loan of Rs.2,76,000/-

from the complainant and towards the outstanding amount, the

accused issued cheque No.097449 for Rs.2,76,000/- dated

13.02.2021 from his account with Dena Bank, Anand Branch. The

complainant deposited the cheque on 17.02.2021 in his account

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with Bank of Baroda, Raopura, Vadodara Branch and the cheque

returned unpaid on 17.02.2021 with the endorsement

"Insufficient Funds". The complainant gave the demand

statutory notice through his advocate on 23.02.2021, which was

duly served to the accused on 25.02.2021 by RPAD but the

accused did not repay the amount within the stipulated period,

and hence, the appellant filed the complaint under Section 138

of the N.I.Act before the Court of the Chief Judicial Magistrate,

Vadodara, which came to be registered as Criminal Case

No.12343 of 2021.

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 could not be served. Thereafter, a bailable

warrant was issued against the accused to be served by hand

but the accused was successful in avoiding the service of

summons and warrant. The appearance of the accused could not

be secured before the learned Trial Court and the matter was

pending for service of warrant and by an order dated

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09.12.2023, 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

order the appellant has preferred the present Criminal Appeal.

4. Heard learned advocate Mr. Vasimraja Kureshi

appearing for the appellant and learned APP Ms.C.M.Shah for

the respondent no. 1 - State. Though served, the respondent

no.2 did not appear either in person or through an advocate.

5. Learned advocate Mr. Vasimraja Kureshi for the

appellant has submitted that the learned Trial Court has failed to

appreciate the evidence on record in proper perspective, and

therefore, the impugned order is unsustainable and bad in law.

Learned advocate further submits that the matter was pending

for service of the warrant and without verifying whether the

same was served or unserved, the impugned order has been

passed, and therefore, the same may be quashed and set aside.

6. Learned APP Ms.C.M.Shah for the respondent - State

has submitted that after recording the absence of learned

advocate for the appellant, the learned Trial Court has passed

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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 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

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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

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

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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 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

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[ 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 and proceeding of the

learned Trial Court it transpires that the accused was successful

in avoding service as the rule in this matter has been effected on

the same address as mentioned in the complaint and without

verifying whether the warrant was returned served or unserved

and the learned Trial Court was pleased to pass 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