Gujarat High Court
Ashokbhai Dalichandji Chhajed vs State Of Gujarat on 30 September, 2025
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R/CR.A/1097/2025 JUDGMENT DATED: 30/09/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1097 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting Yes No
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ASHOKBHAI DALICHANDJI CHHAJED
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR P P MAJMUDAR(5284) for the complainant (s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
MR ANIRUDH N SUCHAK(10768) for the Opponent(s)/Respondent(s) No. 2
MS. CHETNA SHAH, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 30/09/2025
ORAL JUDGMENT
1. The present appeal is filed by the complainant - original complainant
under Section 419 of the Bharatiya Nagarik Suraksha Sanhita, 2023 to
quash and set aside the order of acquittal dated 17.01.2025 passed by the
learned 3rd Judicial Magistrate, First Class, Surat (hereinafter referred to
as the trial Court, for short) in Criminal Case No. 49524 of 2018,
whereby, the learned trial Court acquitted the accused - original accused
for the offence punishable under Sections 138 of the Negotiable
Instruments Act, 1881 (hereinafter referred to as NI Act, for short).
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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 had business relations, and when
accused required financial assistance for personal purposes, he requested
a loan from the complainant. In response, the complainant provided a
hand loan, against which the accused issued a cheque in question and the
as cheque was dishonored, the complainant filed a complaint under
Section 138 of the N.I. Act, leading to Criminal Case No. 25956 of 2006.
A settlement agreement was reached between both parties on 28.05.2018,
which was notarized at Entry No. 565 of 2018. As per the settlement, the
accused undertook to repay the hand loan, and the complainant
withdrew the case in the Lok Adalat on 22.04.2018. In compliance with
the settlement, the accused issued five cheques totaling Rs. 20,00,000/-,
drawn on the Central Bank of India, Surat. However, accused requested
for time and asked the complainant not to deposit the cheques
immediately. Upon depositing them in The Adinath Co. Op. Bank Ltd.,
the cheques were dishonored on 07.08.2018 due to "funds insufficient"
and, hence, a complainant gave a notice on 23.08.2018 but the accused
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did not reply to the notice nor made any payment and hence the
complaint was filed before the Court of Chief Judicial Magistrate, Surat
under Section 138 of the N.I.Act., which was registered as Criminal Case
No. 49524 of 2018.
2.2 The accused was duly served with the summons, but did not appear
before the learned trial Court and a non-bailable warrant came to be
issued against accused , which also remained unserved, and accused was
successful in evading the serving of the same. Thereafter, the complainant
filed an appeal to issue a proclamation against accused, and after
publication of the proclamation in Divya Bhaskar", the accused appeared
before the learned trial Court, and on the next date, i.e., 03.02.2020,
neither the accused nor his advocate remained present. Thereafter, the
complainant filed an appeal under Section 83 of the Code of Criminal
Procedure, 1983, to attach the property of accused , which was allowed,
and the property of accused was ordered to be attached vide an order
dated 01.07.2021. The accused once again appeared before the learned
trial Court and filed an appeal to stay the attachment proceedings, and the
same came to be allowed vide an order dated 23.02.2022. The
complainant thereafter, filed an appeal for issuance of a warrant as the
accused did not remain present and did not attend the trial. The
complainant has produced the affidavit of examination in chief at Exh. 4
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and the matter was pending for recording of cross examination of the
complainant and for the complainant and his advocate remained vigilant
and preferred a number of applications for issuance of non-bailable
warrant and even though the warrants were issued, the accused did not
appear. The stage of cross examination was closed and the matter was
pending for the further statement of the complainant under Section 313
of the Code of Criminal Procedure, 1983 but the learned trial Court
without appreciating the evidence on record, was pleased to pass an order
17.01.2025 and the complaint of the complainant came to be dismissed
on the ground of non-prosecution.
3. Being aggrieved and dissatisfied by the impugned order the
complainant has preferred present Criminal Appeal under Section 378 of
Criminal Procedure Code
4. Heard learned advocate Mr. P.P.Majmudar for the appellant and
Ms. Chetna Shah, learned Additional Public Prosecutor, for the
respondent State. Though served the respondent No. 2 has not appeared
either in person or through an advocate. Perused the judgment and order
passed by the learned trial Court as well as the copy of the rojkam
produced by the learned advocate for the accused.
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5. Learned advocate Mr. P.P.Majmudar for the complainant submits
that the complainant made all efforts to secure the presence of the
respondent No. 2 for trial and was present for the cross examination but
the respondent No. 2 was successful in evading service and without
considering the evidence on record, the order has been passed below
Exh.1 which is erroneous. Hence the order passed by the Trial Court must
be quashed and set aside.
6. Learned Additional Public Prosecutor, Ms. Chetna Shah for the
respondent-State has submitted that the learned trial Court has not
appreciated the evidence on record and the issue requires consideration
and hence appropriate orders may be passed.
7. Learned advocate Mr. Anirudh N. Suchak for the respondent No. 2
has submitted that the learned Trial Court has recorded the absence of the
appellant and has passed the impugned order and hence, no interference is
required and the 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 herein-before contained, acquit the accused,
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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 & 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 Section 256 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 set aside
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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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 herein-before 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 appeal 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
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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 impugned order of the learned Trial Court and
the copy of the paper book and copy of the Rojakm produced, it
transpires that after the learned trial Court took cognizance of the offence,
the summons were issued but the summons were remained unserved and
the respondent No. 2 was successful in evading the service. The appellant
filed an application for proclamation, which was published in the daily
"Divya Bhaskar" and the respondent No. 2 appeared before the learned
Trial Court but thereafter, the respondent No. 2 or his advocate did not
remain present and an application under Section 83 of the Code of
Criminal Procedure, 1973 to attach the property of the respondent No. 2
was filed, which was allowed by the learned Trial Court and thereafter,
the respondent No. 2 appeared before the learned Trial Court and filed an
application to stay the attachment proceedings, which was also allowed
by the learned Trial Court vide order dated 23-02-2022. Once again, the
respondent No. 2 did not appear and a warrant was issued but the
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respondent No. 2 was successful in avoiding the service. Along with the
complaint, the appellant had produced the affidavit of examination-in-
chief at Exh. 4 and all the documents, on which, the appellant relied
upon, were produced before the learned Trial Court and the matter was
pending for cross-examination of the appellant but even though the
appellant was present before the learned Trial Court on many
adjournments, he was not cross examined by the learned advocate for the
respondent No.2. The learned Trial Court also closed the stage of cross-
examination and the matte was pending for recording further statement of
the respondent No. 2 but without appreciating the evidence on record, the
learned Trial Court was pleased to pass an order dated 17-01-2025 and
dismiss the complaint of the complainant on the ground of non-
prosecution. It appears that the entire evidence was on record and the
learned Trial Court has not appreciated the evidence on record but has
passed the impugned order of dismissal.
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 herein above, this Court is of the considered opinion
that the present appeal is required to be 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 17-01-
2025 passed by the learned 3rd Judicial Magistrate First Class, Surat in
Criminal Case No. 49524 of 2018 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 remain present on 04-11-2025 before the learned trial
Court and to cooperate with the learned Trial Court in the proceedings
without seeking any unnecessary adjournment.
(S. V. PINTO,J)
VVM
