Gujarat High Court
Savdasbhai Devanandbhai Madam vs State Of Gujarat on 18 July, 2025
NEUTRAL CITATION
R/CR.A/779/2025 JUDGMENT DATED: 18/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 779 of 2025
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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SAVDASBHAI DEVANANDBHAI MADAM
Versus
STATE OF GUJARAT & ANR.
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Appearance:
M S PADALIYA(7406) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
MR. HARESHKUMAR K PATEL for the Opponent(s)/Respondent(s) No. 2
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 08.08.2023 passed by the learned
Judicial Magistrate First Class, Devbhoomi Dwarka, @ Khambhalia
(hereinafter referred to as the learned trial Court) in Criminal Case No.
1593 of 2018, 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 offence under Section 138 of Negotiable Instrument Act, 1881
(hereinafter referred to as “N.I.Act”).
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2.1] The applicant is in the business of renting Hitachi Machines and
the respondent No. 2 had taken his machine on rent and in that manner,
they had business transaction towards which an amount of Rs.1,66,600/-
was pending to be paid to the applicant. On demand by the applicant, the
respondent No. 2 issued cheque no. 367485 dated 04.06.2018 from his
account with State Bank of India, Kurla Branch and the cheque was
deposited by the applicant in his account with ICICI Bank, which
returned unpaid with the endorsement “Funds Insufficient”. The applicant
gave the demand statutory notice, which was duly served to the
respondent No. 2 but the respondent No. 2 did not pay up the amount and
hence the applicant filed a criminal case under section 138 of the
Negotiable Instruments Act, before the Court of the Chief Judicial
Magistrate Khambhaliya, which came to be registered as Criminal Case
No. 1593 of 2018.
2.2] The learned Trial Court was pleased to take cognizance of the
offence and issued summons to the respondent No. 2. Even though the
summons were duly served to the respondent No. 2, he did not appears
and bailable warrant and thereafter non bailable warrants were issued,
however, the respondent No. 2 kept on avoiding service and on
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20.09.2020, the respondent No. 2 was arrested and produced before the
learned Trial Court. The respondent No. 2 was sent to judicial custody
and learned advocate submits that the applicant had in fact taken the
warrant by hand and had personally ensured that the same be served the
as the respondent No. 2 made all efforts to avoid the service. The learned
Trial Court was pleased to release the respondent No. 2 on bail and once
against, the respondent No. 2 did not appear before the learned trial Court
and the matter was pending for issuance of non bailable warrant and
ultimately on 28.08.2023, the learned Additional Chief Judicial
Magistrate, Khambhaliya was pleased to dismiss the complaint by the
impugned order.
3] Heard learned advocate Mr. M.S.Padaliya 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.
4] Learned advocate for the applicant submits that on perusal of the
Rojkam, it can clearly be seen that the respondent No. 2 made all efforts
to avoid service and even though he was arrested and brought before the
learned trial Court and was released on bail, and he did not appear before
the learned trial Court and the learned trial Court has gravely erred in
passing the impugned order. The applicant has a legally enforceable debt
from the respondent No. 2 and has a good case on merits and the Rojkam
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proves that the applicant was vigilant in making all efforts to get the
warrants served and hence learned advocate for the applicant urges this
Court to allow the application.
4.1] Learned advocate further submits 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 and 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.
5] 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.
6] 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 thePage 4 of 8
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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.”
7] 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.”
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7.1] 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 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, itPage 6 of 8
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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.”
8] On scrutiny of the record and proceedings and Rojkam produced
on record, it transpires that the respondent No. 2 made all efforts to avoid
service of summons, bailable and non bailable warrants and even though
he was arrested and brought before the learned trial Court and was
released on bail, he did not appear before the learned trial Court and the
learned trial Court has gravely erred in passing the impugned order. The
applicant has a legally enforceable debt from the respondent No. 2 and
the Rojkam proves that the applicant was vigilant in making all efforts to
get the warrants served, by the impugned order dated 08.08.2023, the
learned trial Court was pleased to pass the impugned order below Exh.1
dismissing the complaint of the applicant for want of prosecution and
acquitted the accused from the offence under Section 138 of the N.I.Act.
9] It is pertinent to note that the matter was pending for service of non
bailable warrant but the learned trial Court without appreciating the facts
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
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committed an error in dismissing the matter.
10] 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.
11] Accordingly, the present appeal is allowed. The order dated
08.08.2023 passed by the learned Judicial Magistrate First Class,
Devbhoomi Dwarka, @ Khambhalia in Criminal Case No. 1593 of 2018
is hereby quashed and set aside and the complaint is restored to its
original status for trial in accordance with law.
12] 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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