Gujarat High Court
Proprietor Jay Laxmi Industries Thro ... vs State Of Gujarat on 18 December, 2023
NEUTRAL CITATION
R/CR.A/2787/2023 JUDGMENT DATED: 18/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2787 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PROPRIETOR JAY LAXMI INDUSTRIES THRO BRIJESH
KAUSHIKCHANDRA RASANIYA
Versus
STATE OF GUJARAT
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Appearance:
KUSHAL A DESAI(9435) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2
MS VRUNDA SHAH, ADDL.PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 18/12/2023
ORAL JUDGMENT
1.This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 ('the Cr.P.C.' hereinafter) challenging the impugned judgment and order dated 18.01.2021 passed by the learned Additional Judicial Magistrate First Class, Halol in Criminal Case No.1389 of 2019, dismissing the Page 1 of 9 Downloaded on : Thu Dec 21 20:37:44 IST 2023 NEUTRAL CITATION R/CR.A/2787/2023 JUDGMENT DATED: 18/12/2023 undefined complaint for nonprosecution by exercising the power under Section 256 of the Cr.P.C. and acquitting the respondentaccused from the charges.
2.It is the case of the complainant that, the complainant is the manufacturer of the agricultural products, pesticides, etc. The respondentaccused had purchased the goods from the complainant on credit basis, on demanding the bill amount, the respondent accused had issued the cheque in the name of the complainant firm for the amount of Rs.8,63,650/ bearing cheque No.343117 dated 15.05.2019. On depositing the aforesaid cheque with the H.D.F.C. Bank, Halol, it was returned with an endorsement "Account Closed"
on 17.05.2019. Thereafter, the complainant had issued the notice and after following the due procedure prescribed under the Negotiable Instruments Act, 1881, private complaint came to be filed being Criminal Case No.1389 of 2019. Learned Court vide order dated 09.07.2019 issued the process under 204 of the Cr.P.C., making it returnable on 05.08.2019. Matter was adjourned time to time Page 2 of 9 Downloaded on : Thu Dec 21 20:37:44 IST 2023 NEUTRAL CITATION R/CR.A/2787/2023 JUDGMENT DATED: 18/12/2023 undefined and ultimately, on the day when the impugned judgment and order was passed i.e. on 18.01.2021, learned Court had dismissed the complaint on the ground of nonprosecution and the respondentaccused was acquitted from the charges, which are impugned before this Court.
3.Heard the learned advocate Mr.Kushal Desai for the appellant, learned APP Ms.Vrunda Shah for the respondentState and as the respondent No.2 had chosen not to appear despite having the sufficient opportunity, this matter was considered in his absence.
4.Learned advocate Mr.Kushal Desai submits that initially the complaint came to be filed on 09.07.2019, where the summons came to be issued, making it returnable on 05.08.2019. Learned advocate Mr.Desai submits that On 05.08.2019, order was passed to give the direct service of summons to serve the accused. Again, on 04.09.2019, the similar order was passed. On 07.10.2019, learned Court was on leave. On 06.11.2019 as the direct service was not given, order was passed to give the direct service. Similar situation was there on the next date i.e. on Page 3 of 9 Downloaded on : Thu Dec 21 20:37:44 IST 2023 NEUTRAL CITATION R/CR.A/2787/2023 JUDGMENT DATED: 18/12/2023 undefined 17.11.2019. It reflects that upto month of December 2020, the summons could not serve to the accused. The date is not clear, but in the month of December 2020, the Court was on leave and therefore, the matter was adjourned on 18.01.2020.On that day, the impugned order was passed observing that though summons was issued, but the complainant is not able to serve the same and on that day the matter was called out thrice upto 17:00p.m. but the complainant or his advocate remained absent before the Court and therefore, the learned trial Court had exercised the power under Section 256 of the Code of Criminal Procedure.
5.Learned advocate Mr.Desai further submits that there was a single default on the part of the complainant for no remaining present, though the case was at the stage of the service of the Bailable or NonBailable Warrant and though the accused had despite the summons had been served, chosen not to appear before the learned Court, without giving an opportunity to the complainant, the case was dismissed for nonprosecution.Page 4 of 9 Downloaded on : Thu Dec 21 20:37:44 IST 2023
NEUTRAL CITATION R/CR.A/2787/2023 JUDGMENT DATED: 18/12/2023 undefined
6.Learned advocate Mr.Desai further submits that in the cases pertaining to the N.I.Act, the complainant is always on the stake as he did not receive the due amount and unfortunately the cheque was also returned and these are the proceedings having the limitation period, on dismissing the complaint for nonprosecution the complainant would be left remedy less.
7.Learned advocate Mr.Desai for the appellant submits that it is true that the complainant did not remain present on the day when the impugned judgment and order was passed and he is ready to deposit cost of Rs.3000 and prays that if this matter is restored to its original file, no unnecessary adjournment would be sought by the complainant and the matter would be concluded without further delay.
8.Learned advocate Mr.Desai further submits that accused is the resident of the State of Maharastra and despite the summons was served, he had chosen not to appear before the Court and the learned Court had acquitted the respondentaccused without giving an opportunity to the complainant to lead the Page 5 of 9 Downloaded on : Thu Dec 21 20:37:44 IST 2023 NEUTRAL CITATION R/CR.A/2787/2023 JUDGMENT DATED: 18/12/2023 undefined evidence and decide the matter on merits.
9.In view of above, the learned advocate Mr.Desai prays to quash and set aside the order and to restore the matter to its original file.
10. Considering the issue involve, Section 256 of the Cr.P.C. is required to be re looked which is reproduced hereinbelow:
"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."
11. The discretion under Section 256 of the Cr.P.C. has to be exercised fairly and judiciously without impairing the cause on administration of criminal justice.
12. In a case under Section 138 of the Page 6 of 9 Downloaded on : Thu Dec 21 20:37:44 IST 2023 NEUTRAL CITATION R/CR.A/2787/2023 JUDGMENT DATED: 18/12/2023 undefined Negotiable Instruments Act, 1881, it is always complainant who is at stake for his money which ought to have paid through the cheuqe. Unfortunately, the cheque in question was dishonored. Under such circumstances, a complaint should not have been dismissed immediately and Court ought to have adopted the course to adjourn the case for hearing to some other day under provision of Section 256 of the Cr.P.C.
13. Considering the arguments advanced by the learned advocate for the appellant and on perusing the record, this Court finds that the learned Court had dismissed the complaint for nonprosecution on 18.01.2021 recording the absent of the complainant and on perusing the rojkaam it is found that except the date when the impugned order was passed, the complainant or his learned advocate was present before the concerned Court. Learned Court ought to have considered the aspect that though the summons was served and application was given for Bailable or Non Bailable Warrant, instead of giving the opportunity to the complainant to serve the warrant, learned Court had dismissed the Page 7 of 9 Downloaded on : Thu Dec 21 20:37:44 IST 2023 NEUTRAL CITATION R/CR.A/2787/2023 JUDGMENT DATED: 18/12/2023 undefined complaint.
14. Learned Court ought to have followed the principles of natural justice by giving the opportunity to lead the evidence to the complainant and instead of dismissing the matter on technical ground, it should have been decided on merits. Therefore, this Court is of the view that the order passed by the learned Court below requires to be quashed and set aside and complaint is required to be restored to its original file. As the appellant was not appeared before the concerned Court therefore, the concerned Court had passed the impugned order, the appropriate cost is required to be awarded and therefore, the appellant is directed to deposit the cost of Rs.3000 with the Registry of this Court and Registry is directed to remit the said amount in the account of Shishu Gruh, Paldi by way of electronic mode.
15. In view of above, this appeal is allowed. The impugned judgment and order dated 18.01.2021 passed by the learned Additional Judicial Magistrate First Class, Halol in Criminal Case No.1389 of 2019, is quashed and set aside. The proceedings shall Page 8 of 9 Downloaded on : Thu Dec 21 20:37:44 IST 2023 NEUTRAL CITATION R/CR.A/2787/2023 JUDGMENT DATED: 18/12/2023 undefined stand restored to their original number on the file of the learned Magistrate and complainant shall now proceed from the stage when the order of the acquittal was passed. R & P be sent back to the concerned Court forthwith.
16. It is needless to say that the complainant would not seek any unnecessary adjournment and would see that the case is concluded without further delay.
17. Direct Service is permitted.
(M. K. THAKKER,J) M.M.MIRZA Page 9 of 9 Downloaded on : Thu Dec 21 20:37:44 IST 2023