Gujarat High Court
Rajeshbhai Ramlal Jariwala vs State Of Gujarat on 18 September, 2025
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R/CR.A/1906/2025 JUDGMENT DATED: 18/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1906 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
√
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RAJESHBHAI RAMLAL JARIWALA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR. RAAJEN D JADHAV(10026) for the Appellant(s) No. 1
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No. 2
MS C.M.SHAH, APP for the Opponent(s)/Respondent(s) No. 1
SERVED BY RPAD (R) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 18/09/2025
ORAL JUDGMENT
1. The present appeal is filed by the appellant -
original complainant under Section 419 of the Bhartiya Nagrik
Suraksha Sanhita, 2023 (for short "BNSS") against the order
passed by the learned 17th Additional Chief Judicial Magistrate,
Surat (hereinafter referred to as the "learned Trial Court") in
Criminal Case No. 6606 of 2016 dated 25.02.2022, whereby the
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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. 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 and the respondent no. 2 were known
to each other and the respondent no. 2 was in need of some
finance and demanded an amount of Rs.14,00,000/- from the
appellant. The appellant had given the amount of Rs.14,00,000/-
as a hand loan and the amount was to be returned within a
period of three to four months. When the amount was
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demanded, the respondent no.2 gave cheque nos. 000028 and
000029 both dated 03.04.2015 for Rs. 4,00,000/- each from his
account with HDFC Bank, Chikhli - Bilimora Branch. The
cheques were deposited by the appellant in his account with
Central Bank of India, Ghod Dod Road Branch, Surat, but the
cheques returned unpaid with the endorsement "Funds
Insufficient". The demand statutory notice was given and even
though the notice was served, the respondent no. 2 did not
repay the amount within the stipulated period, and hence, the
appellant filed criminal complaint under Section 138 of the NI
Act before the Court of Additional Chief Judicial Magistrate,
Surat which came to be registered as Criminal Case No.
6066/2016.
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 and the accused appeared before the learned Trial
Court and plea was recorded and the matter was pending for
cross examination and adjourned for evidence. By an order
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dated 25.02.2022, 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 the appellant has preferred present
Criminal Appeal under Section 419 of the BNSS.
4. Heard learned advocate Mr. Aniruddh Suchak for
leanred advocate Mr. Raajen Jadav appearing for the appellant
and learned APP Ms.C.M.Shah for the respondent - State.
Though served, the respondent no.2 has not appeared either in
person or through an advocate.
5. Learned advocate Mr. Aniruddh Suchak 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 matter was
pending for recording of the further statement of the respondent
no.2 and the entire evidence of the appellant was on record, the
learned Trial Court did not consider the same and passed the
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impugned order and hence, 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
the impugned order under Section 256 of the Cr.P.C. and hence,
this Court may not interfere with the impugned order and have
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.
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(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:
"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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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
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
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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 paper book and rojkam produced
by the learned advocate for the appellant, it transpires that
during pendency of the trial, talks of compromise was going on
and on that basis, the learned Trial Court adjourned the matter
on four occasions. Thereafter, on two occasions i.e. on
01.09.2021 and 08.10.2021, the accused remained present
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before the learned Trial Court and the appellant or his advocate
did not not remain present before the learned Trial Court and
the matter was adjourned on 28.12.2021 and as on 28.12.2021,
the learned Trial Court was not available, the matter was kept on
25.02.2022 and on 25.02.2022, 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 entire
evidence of the appellant was on record and the matter was
pending for recording the further statement of the accused.
11. 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.
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12. Accordingly, the present appeal is allowed. The
order dated 25.02.2022 passed by the learned 17th Additional
Chief Judicial Magistrate, Surat in Criminal Case No. 6606 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.
Sd/-
(S. V. PINTO,J)
F.S. KAZI
