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 ==========================================================

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 ================================================================

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”).

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 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

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 tri