Gujarat High Court

Denishbhai Jaysukhbhai Mehta Thro Poa ... vs State Of Gujarat on 23 September, 2025

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                             R/CR.A/1240/2025                                      JUDGMENT DATED: 23/09/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                                R/CRIMINAL APPEAL NO. 1240 of 2025
                                                      (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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                                   DENISHBHAI JAYSUKHBHAI MEHTA THRO POA KIRANSINH
                                              GHANSHYAMSINH CHUDASMA
                                                         Versus
                                                STATE OF GUJARAT & ANR.
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                        Appearance:
                        MR RATHIN P RAVAL(5013) for the complainant(s) No. 1
                        MR NILESH R KOYANI(5129) for the Opponent(s)/Respondent(s) No. 2
                        MR PREMAL R JOSHI(1327) for the Opponent(s)/Respondent(s) No. 2
                        MS.C.M.SHAH, APP for the Opponent(s)/Respondent(s) No. 1
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                          CORAM:HONOURABLE MS. JUSTICE S.V. PINTO

                                                         Date : 23/09/2025

                                                         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 Additional Chief Judicial Magistrate,

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

Criminal Case No. 1801 of 2019 dated 16.10.2024, whereby, the

learned Trial Court has dismissed the criminal case for want of

prosecution as the complainant did not remain present under

the provisions of Section 256 of Code of Criminal Procedure,

1973 (for short "Cr.P.C.") and the accused - 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 "the 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 accused were known to

each other and the accused was in need of financial assistance to

pay the fees of her daughter Daxa Rajabhai Mehta and the

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complainant had advanced an amount of Rs.1,90,000/- to the

accused. The accused executed a notarized promissory note

and issued a cheque No.386003 for Rs.1,90,000/- from her

account with State of Bank of India, Opposite Janana Hospital,

Hospital Chowk, Javahar Road Branch, Rajkot. The complainant

deposited the said cheque in his account with Gondal Nagarik

Sahakari Bank Limited, Mandavi Chowk, Rakot Branch.

However, the said cheque returned unpaid with the

endorsement "Exceeds Arrangement". The complainant sent

the demand statutory notice to the accused which was duly

served but the accused did not send any reply and did not

repay the amount within stipulated period, and hence, the

complainant filed a complaint under Section 138 of the N.I.Act,

before the Court of the Chief Judicial Magistrate, Gondal, which

came to be registered as Criminal Case No. 1801 of 2019.

2.2. The learned Trial Court was pleased to consider the

affidavit, documents produced on record and examination-in-

chief of the complainant and take cognizance for the offence

under Section 138 of the N.I.Act and passed an order to issue

summons, which was duly served but the accused did not

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appear before the learned Trial Court, and hence, a non-

bailable warrant was issued. The complainant made

innumerable efforts including taking the non-bailable warrant

for execution by hand but the accused was successful in

avoiding the service, and after innumerable attempts, on

15.03.2023, the accused appeared before the learned Trial

Court and gave an application at Exh.18 for taking the matter on

board along with an application at Exh.19 for cancellation of the

warrant, which was allowed by the learned Trial Court. The

vakalatnama of the learned advocate for the accused was taken

on record at Exh.20 and the address pursis was submitted at

Exh.21. The matter was pending for cross-examination of the

complainant and the complainant was present before the

learned Trial Court on number of occasions but not cross-

examined by the learned advocate for the accused. On

30.09.2023, the complainant gave an application at Exh.24 to

close stage of the cross-examination, which was kept for

hearing, and thereafter, the accused or the learned advocate for

the accused did not appear before the learned Trial Court. The

complainant, once again, gave an application for issuing the

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non-bailable warrant, which was allowed, and once again, the

accused appeared and gave an application for cancellation of

the warrant, which was also allowed, and thereafter, the

complainant was not cross-examined, and even though the

entire evidence was on record, an application at Exh.24 was

pending for hearing and closing the stage of the cross-

examination, without passing any order on any application. By

an order dated 16.10.2024, 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 the complainant has preferred present

Criminal Appeal under Section 419 of the BNSS.

4. Heard learned advocate Mr.Rathin Raval appearing

for the appellant - original complainant, learned APP

Ms.C.M.Shah for the respondent no.1 - State and learned

advocate Mr.Premal Joshi for the respondent no. 2 - accused.

5. Learned advocate Mr.Rathin Raval for the

complainant has submitted that the learned Trial Court has

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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 cross-examination of the

appellant and the entire evidence of the complainant was on

record, but the learned Trial Court did not consider the same

and passed the impugned order and hence, the same may be

quashed and set aside.

6. Learned APP Ms.C.M.Shah for the respondent no.1 -

State has submitted that after recording the absence of learned

advocate for the complainant, 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. Learned advocate Mr.Premal Joshi for the appellant

has submitted that after taking cognizance of the offence, the

accused did not appear before the learned Trial Court and the

appellant made innumerable efforts to get the non-bailable

warrant served to the accused and the accused was successful in

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avoiding the service and if the Rojkam is perused, the appellant

had given an application at Exh.13, and thereafter, an

application at Exh.24 to close stage of the cross-examination as

the examination-in-chief was on affidavit at Exh.5 and all the

documents that the appellant relied upon were on record vide

list at Exh.3. The appellant had also preferred an application at

Exh.6 for getting the documents exhibited, but it appears that

even though the applicant was vigilant and the appellant or his

advocate was regularly appearing before the learned Trial

Court, without closing stage of the cross-examination and

without considering the evidence on record, the learned Trial

Court was pleased to pass the impugned order dated 16.10.2024

and dismissed the case for non-prosecution. If the Rojkam is

perused, it would appear that the entire Rojkam speaks of

issuing the non-bailable warrant, cancellation of non-bailable

warrant or exemption application of the accused, and even on

06.10.2024, an application for exemption of the accused was

produced on record at Exh.32, which was allowed. Learned

advocate has further submitted that the appellant was not

present and the learned Trial Court was pleased to dismiss the

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case for want of prosecution under Section 256 of the Cr.P.C. in

the absence of the appellant, and hence, the present appeal

may be rejected.

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 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 &

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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."

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:

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"( 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 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.

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(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 paper book and Rojkam produced

by the learned advocate for the complainant, it appears 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 complainant was on record and the

matter was pending for cross-examination of the appellant.

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

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