Gujarat High Court
Mas Financial Services Ltd Thro Prakhar ... vs State Of Gujarat on 14 July, 2025
NEUTRAL CITATION
R/CR.A/1609/2025 JUDGMENT DATED: 14/07/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1609 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS. JUSTICE S.V. PINTO
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Approved for Reporting No
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MAS FINANCIAL SERVICES LTD THRO PRAKHAR VERMA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR NEEL VASANT(13667) for the Appellant(s) No. 1
TIRTH NAYAK(8563) for the Appellant(s) No. 1
BAILABLE WARRANT NOT RECEIVED BACK for the
Opponent(s)/Respondent(s) No. 2
MR HARSH M SURTI(3907) for the Opponent(s)/Respondent(s) No. 2,3
MR SIKANDER SAIYED(3458) for the Opponent(s)/Respondent(s) No. 2,3
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 : 14/07/2025
ORAL JUDGMENT
1. The present appeal is filed by the appellant - original complainant under Section 378 of the Code of Criminal Procedure, 1973 against the order dated 24.07.2024 passed by the learned 24th Additional Chief Judicial Magistrate, Ahmedabad City (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 119 of 2016, whereby the learned Trial Court has dismissed the Criminal Case for Page 1 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:00:40 IST 2025 NEUTRAL CITATION R/CR.A/1609/2025 JUDGMENT DATED: 14/07/2025 undefined 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 parties 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 - a finance company, had filed a complaint against the accused under Section 138 of the N I Act as the accused had taken a term loan of Rs.
83,33,333/- from the complainant and the accused issued cheque No.000205 for the due amount of Rs. 72,30,364/- dated 19.02.2016 from his account with The Mahesana Urban Co-operative Bank Ltd, C.G. Road, Ahmedabad Branch. The complainant deposited the said cheque and the cheque returned unpaid with the endorsement "Exceeds Page 2 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:00:40 IST 2025 NEUTRAL CITATION R/CR.A/1609/2025 JUDGMENT DATED: 14/07/2025 undefined Arrangement". The complainant gave the demand statutory notice through his advocate on 14.03.2016 which was duly served to the accused but the accused did not repay the amount and hence, the complainant filed the complaint under Section 138 of the N I Act before the Court of the Chief Metropolitan Magistrate, Ahmedabad which came to be registered as Criminal Case No. 2900119 of 2016. 2.2 The learned Trial Court was pleased to consider the affidavit and documents produced 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. During the pendency of the trial as the representative who had filed the case on behalf of the company expired, an application for substitution of the complainant was given and the same was allowed by the learned Trial Court by an order dated 16.11.2022. The appellant filed an application on 22.02.2023 seeking time to file the affidavit of examination-in-chief and the learned Trial Court was pleased to allow the said application with a cost of Rs.15,000/- to be paid in the Metro Legal Service Page 3 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:00:40 IST 2025 NEUTRAL CITATION R/CR.A/1609/2025 JUDGMENT DATED: 14/07/2025 undefined Committee, Gheekanta, Ahmedabad. The appellant challenged the order of imposing cost of Rs.15,000/- by the learned Trial Court order before the City Sessions Court, Ahmedabad by filing Criminal Revision Application No.194 of 2023. During pendency of the said revision application, the appellant filed an application on 24.07.2024 before the learned Trial Court stating that he was ready and willing to deposit the amount of cost but by the impugned order, the 24th Additional Chief Judicial Magistrate, N.I.Act, Court No. 31, Ahmedabad was pleased to pass the order below Exh.1 dismissing the criminal case under Section 256 of the Cr.P.C. 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(4) of Code of Criminal Procedure, 1973.
4. Heard learned advocate Mr. Tirth Nayak appearing for the appellant, learned APP Ms. C.M. Shah for the respondent - State and learned advocate Mr. Sikandar Page 4 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:00:40 IST 2025 NEUTRAL CITATION R/CR.A/1609/2025 JUDGMENT DATED: 14/07/2025 undefined Saiyed for the respondents.
5. Learned advocate Mr. Tirth Nayak 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 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 Ms. C.M. Shah for the respondent - State and learned advocate Mr. Sikandar Saiyed for the respondents 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 has 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 Page 5 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:00:40 IST 2025 NEUTRAL CITATION R/CR.A/1609/2025 JUDGMENT DATED: 14/07/2025 undefined 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."
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 Page 6 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:00:40 IST 2025 NEUTRAL CITATION R/CR.A/1609/2025 JUDGMENT DATED: 14/07/2025 undefined 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:
"(4) Section 256 of the Code of Criminal Procedure provides Page 7 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:00:40 IST 2025 NEUTRAL CITATION R/CR.A/1609/2025 JUDGMENT DATED: 14/07/2025 undefined 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 Page 8 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:00:40 IST 2025 NEUTRAL CITATION R/CR.A/1609/2025 JUDGMENT DATED: 14/07/2025 undefined 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 by an Advocate."
9. On scrutiny of the record produced by the learned Page 9 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:00:40 IST 2025 NEUTRAL CITATION R/CR.A/1609/2025 JUDGMENT DATED: 14/07/2025 undefined advocate for the appellant, it transpires that the appellant had filed the complaint and the process was issued to the accused. The appellant had submitted an application for substituting the complainant and the same was allowed by the learned Trial Court vide order dated 16.11.2022. Thereafter, the applicant filed an application on 22.02.2023 seeking time to file affidavit of examination in chief and the learned Trial Court had allowed the said application imposing a cost of Rs. 15,000/-. The order of imposing cost was challenged by the complainant before the City Sessions Court but without waiting for the revision application to be decided by the City Sessions Judge, the impugned order has been passed on the ground of non-prosecution under Section 256 of Code of Criminal Procedure, 1973.
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, it appears that the trial Court has committed an error in dismissing the matter.
11. Considering the facts and circumstances of the case Page 10 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:00:40 IST 2025 NEUTRAL CITATION R/CR.A/1609/2025 JUDGMENT DATED: 14/07/2025 undefined 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.
12. Accordingly, the present appeal is allowed. The order dated 24.07.2024 passed by the learned 24 th Additional Chief Judicial Magistrate, Ahmedabad City in Criminal Case No. 119 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.
(S. V. PINTO,J) VASIM S. SAIYED Page 11 of 11 Uploaded by VASIM SHABBIR SAIYED(HC01902) on Tue Jul 15 2025 Downloaded on : Tue Jul 15 23:00:40 IST 2025