Gujarat High Court
Maheshkumar Ishvarbhai Patel vs State Of Gujarat on 18 July, 2025
NEUTRAL CITATION
R/CR.A/1824/2024 JUDGMENT DATED: 18/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1824 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO Sd/-
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Approved for Reporting Yes No
No
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MAHESHKUMAR ISHVARBHAI PATEL
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR JIGAR L PATEL(11596) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
MR. HARESHKUMAR K PATEL(16299) for the Opponent(s)/Respondent(s)
No. 2,3
MR.PRANAV DHAGAT, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 18/07/2025
ORAL JUDGMENT
1] The present appeal is filed by the appellant – original complainant
under Section 378(4) of the Code of Criminal Procedure, 1973 (for short
“Cr.P.C.”) against the order dated 09.03.2024 passed by the learned
Judicial Magistrate First Class, Sayla, Surendranagar (hereinafter referred
to as the learned trial Court) in Criminal Case No. 220 of 2019, whereby,
the learned Trial Court dismissed the Criminal Case for want of
prosecution under the provisions of Section 256 of Cr.P.C and the
respondent No. 2 – original accused came to be acquitted from the
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offence under Section 138 of Negotiable Instrument Act, 1881
(hereinafter referred to as “N.I.Act”).
1.1] The respondent No. 2 is hereinafter referred to as “the accused” in
the rank and file 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 accused had business relations and the
accused had purchased the goods material from the appellant and an
amount of Rs. 1,66,926/- was due against which, the accused issued
Cheque No. “018803”, for the amount of Rs. 1,66,926/- dated 30.04.2019
from his account with Bank of India Ltd., Kharibona Branch, West
Bengal. The appellant deposited the cheque, which came to be returned
unpaid with the endorsement “Exceeds Arrangement”. The demand
statutory notice was given to the accused refused to accept the notice and
did not repay the outstanding amount and hence, the appellant filed a
criminal complaint before the Court of the Judicial Magistrate First Class,
Sayla, Surendranagar under Section 138 of the Negotiable Instruments
Act, 1881, which came to be registered as Criminal Case No. 220 of
2019.
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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 duly served to
accused and the accused appeared before the learned trial court and the
matter was adjourned for recording plea of the accused thereafter the
accused had filed an exemption application. The matter was adjourned for
multiple times thereafter the accused nor his advocate appeared and a non
bailable warrant was issued but the same could not be executed. The
appellant had filed the affidavit of examination in chief and other
documents on record and the matter was pending for service of warrant
but by an order dated 09.03.2024, the learned Trial Court was pleased to
dismiss the present complaint for want of prosecution on the part of the
complainant.
3] Being aggrieved and dissatisfied by the impugned order the
appellant has preferred present Criminal Appeal under Section 378
Cr.P.C.
4] Heard learned advocate Mr. Jigar Patel for the appellant, learned
APP Mr. Pranav Dhagat for the respondent No. 1 – State and learned
advocate Mr. Hareshkumar Patel for the respondent Nos. 2 and 3.
5] Learned advocate Mr. Jigar Patel for the appellant has submitted
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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
learned Trial Court has not appreciated the evidence on record and has
passed the impugned order and hence, the same may be quashed and set
aside.
6] Learned APP Mr. Pranav Dhagat for the respondent No. 1 – State
and Mr. Hareshkumar K. Patel for the respondent Nos. 2 and 3 have
jointly 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
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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 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 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: –
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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.
( 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
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by an Advocate.”
9] On scrutiny of the record and proceedings and Rojkam produced
on record, it transpires that the affidavit of examination-in- chief was
produced at Exh.5 and the documentary evidence was produced on
record. The accused was duly served with the process and he appeared
and the matter was adjourned for recording the plea of the accused
thereafter the accused has filed an exemption application thereafter
neither appellant nor the accused appeared before the learned trial court
to proceed further, and thereafter, the matter was adjourned for multiple
times and on 11.07.2024, the learned trial Court was pleased to pass the
impugned order below Exh.1 dismissing the complaint of the appellant
for want of prosecution and acquitted the accused from the offence under
Section 138 of the N.I.Act.
10] It is pertinent to note that the matter was pending for service of non
bailable warrant to the accused but the learned trial Court without
appreciating the evidence on record, passed the impugned order. In light
of the settled principle of law of the Apex Court in M/s BLS
Infrastructure Limited (supra), and Sureshchandra Patni (Supra) it
appears that the learned trial Court has committed an error in dismissing
the matter even though the evidence of the appellant was on record.
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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.
12] Accordingly, the present appeal is allowed. The order dated
09.03.2024 passed by the learned Judicial Magistrate First Class, Sayla,
Surendranagar in Criminal Case No. 220 of 2019 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)
VVM
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