Gujarat High Court
Iliyas Kasambhai Fatiwala vs State Of Gujarat on 18 August, 2025
NEUTRAL CITATION
R/CR.A/625/2025 JUDGMENT DATED: 18/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 625 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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ILIYAS KASAMBHAI FATIWALA
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR NEERAJ SONI(3433) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
MR. MH SHEKHAWAT(7194) 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 : 18/08/2025
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 passed by the learned Chief Judicial Magistrate, Valsad (hereinafter referred to as the "learned trial Court") in Criminal Case No. 3432 of 2019 on 19.01.2024, whereby the learned trial Court has dismissed the Criminal Case for want of prosecution as the appellant - original complainant did not remain present 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 the Page 1 of 8 Uploaded by VISHAL MISHRA(HC01088) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 23:39:40 IST 2025 NEUTRAL CITATION R/CR.A/625/2025 JUDGMENT DATED: 18/08/2025 undefined Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI 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 That the complainant and the accused are relatives and were known to each other, and the complainant had given an amount of Rs. 8,60,000/-
to the accused. Towards the outstanding amount, the accused had issued cheque No. "487134" for Rs. 4,90,000/- dated 20.12.2019 from his account with State Bank of India, Valsad branch. The cheque was deposited by the complainant into his account, and the said cheque was returned unpaid with the endorsement "Funds Insufficient." The complainant gave the statutory demand notice, which was duly served on the accused, but no reply was given and no payment was made within the stipulated period. Hence, the complainant filed a complaint under Section 138 of the NI Act before the Court of Chief Judicial Magistrate, Valsad, which was registered as Criminal Case No. 3432 of 2019. 2.2 The learned Trial Court was pleased to take cognizance of the offence, issued summons to the accused, and along with the complaint, Page 2 of 8 Uploaded by VISHAL MISHRA(HC01088) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 23:39:40 IST 2025 NEUTRAL CITATION R/CR.A/625/2025 JUDGMENT DATED: 18/08/2025 undefined the complainant filed the affidavit of examination-in-chief at Exh. 4, the documents on which he relied upon vide a list at Exh. 3, and an application at Exh. 5 to exhibit the documents. The accused was successful in avoiding service, and the complainant took the summons by hand on a number of occasions for service, and the accused was duly served but did not appear before the learned trial Court. Thereafter, bailable and non-bailable warrants were issued against the accused and subsequently, the accused appeared before the learned Trial Court and his plea was recorded and the matter was pending for cross-examination of the complainant. The wife of the complainant was suffering from cancer, and the matter was adjourned on the date on which her chemotherapy was scheduled and the complainant was unable to remain present. However, the learned Trial Court, without appreciating the evidence on record, was pleased to pass the impugned order dismissing the complaint of the complainant for non-prosecution.
3. Being aggrieved and dissatisfied by the impugned order the appellant has preferred the present Criminal Appeal under Section 378 Cr.P.C.
4. Heard learned advocate Mr. Neeraj Soni for the appellant, learned advocate Mr. M.H.Shekhavat for the respondent No. 2 and learned APP Page 3 of 8 Uploaded by VISHAL MISHRA(HC01088) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 23:39:40 IST 2025 NEUTRAL CITATION R/CR.A/625/2025 JUDGMENT DATED: 18/08/2025 undefined Ms. Chetna Shah for the respondent No. 1 - State.
5. Learned advocate Mr. Neeraj 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. Chetna Shah for the respondent No. 1 - State and learned advocate Mr. M.H.Shekhavat for the respondent No. 2 have jointly submitted that after recording the absence of the appellant and 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 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 Page 4 of 8 Uploaded by VISHAL MISHRA(HC01088) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 23:39:40 IST 2025 NEUTRAL CITATION R/CR.A/625/2025 JUDGMENT DATED: 18/08/2025 undefined 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 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 Page 5 of 8 Uploaded by VISHAL MISHRA(HC01088) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 23:39:40 IST 2025 NEUTRAL CITATION R/CR.A/625/2025 JUDGMENT DATED: 18/08/2025 undefined 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, 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 Page 6 of 8 Uploaded by VISHAL MISHRA(HC01088) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 23:39:40 IST 2025 NEUTRAL CITATION R/CR.A/625/2025 JUDGMENT DATED: 18/08/2025 undefined 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, proceedings, and Rojkam produced on record, it transpires that summons were served and the accused appeared before the learned trial court, and the plea of the accused was also recorded. The matter was pending the cross-examination of the complainant and was adjourned on a number of occasions. The complainant had produced all the documents relied upon vide a list at Exh.3 and had submitted an application to exhibit the documents at Exh.5, which was kept pending for hearing. The complainant was present on numerous adjournments except on two occasions due to his wife's health issues. The Rojkam indicates that the complainant was not negligent in conducting the case before the learned trial court and had remained present, but was not cross-examined by the learned advocate for the accused. By the impugned order dated 19.01.2024, the learned Trial Court was pleased to pass an order under Section 256 of the Cr.P.C. and dismiss the complaint of the complainant, though the evidence of the complainant was on record.
10. It is pertinent to note that the matter was pending at the stage of cross examination of the complainant and the documents to prove the case against the respondent No.1 and the affidavit of examination in Page 7 of 8 Uploaded by VISHAL MISHRA(HC01088) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 23:39:40 IST 2025 NEUTRAL CITATION R/CR.A/625/2025 JUDGMENT DATED: 18/08/2025 undefined Chief was on record 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.
11. 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 06.01.2024 passed by the Court of learned Chief Judicial Magistrate, Valsad in Criminal Case No. 3432 of 2019 on 19.01.2024,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 15-09-2025 before the learned trial Court in the proceedings and shall cooperate in the trial without seeking any unnecessary adjournment.
Sd/-
(S. V. PINTO,J) VVM Page 8 of 8 Uploaded by VISHAL MISHRA(HC01088) on Mon Aug 18 2025 Downloaded on : Mon Aug 18 23:39:40 IST 2025