NEUTRAL CITATION
R/CR.A/2485/2023 JUDGMENT DATED: 03/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2485 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
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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PARESHBHAI ARVINDBHAI BHATT
Versus
STATE OF GUJARAT
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Appearance:
MR. ALTAF Y CHARKHA(7271) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2
MR BHARGAV PANDYA APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 03/11/2023
ORAL JUDGMENT
Rule. Mr.Jigar Patel, learned advocate for Respondent No.2 and Mr.Bhargav Pandya, learned APP for Respondent - State waive service of rule on behalf of respective parties. Page 1 of 9 Downloaded on : Wed Nov 08 20:35:52 IST 2023
NEUTRAL CITATION R/CR.A/2485/2023 JUDGMENT DATED: 03/11/2023 undefined
1. This appeal is filed under Section 379 of the Code of Criminal Procedure, 1973, challenging the order of acquittal on the ground of non prosecution passed by the learned Additional Chief Judicial Magistrate, Godhra dated 26.7.2023 in Criminal Case No.801 of 2021.
2. It is the case of the complainant that complainant is doing the business of construction and father of the Respondent No.2 is the friend of the complainant. Therefore, they came into contact with the respondent-accused. As the Respondent No.2 was in financial need, demand of Rs.4,70,000/- was made. However, an amount of Rs.3,00,000/- was advanced by the complainant on 4.12.2020 by cheque bearing No.002137 of IDBI Bank. Thereafter, the complainant had given the cash of Rs.1 lac on 5.12.2020 and 70,000/- was paid through Google Pay, in all, Rs.4,70,000/- was advanced by the complainant for which agreement was executed on 19.3.2021.
3. It is the case of the complainant that for payment of the aforesaid amount, Respondent No.2 had issued the cheque bearing No.000062 of Rs.4,70,000/- of Bank of Baroda, Gandhi Page 2 of 9 Downloaded on : Wed Nov 08 20:35:52 IST 2023 NEUTRAL CITATION R/CR.A/2485/2023 JUDGMENT DATED: 03/11/2023 undefined Chowk, Branch and assurance was given that on depositing the cheque, amount would be credited in his account. The complainant had deposited the cheque in his account in the HDFC Bank on 14th April, 2021 and same was dishonored with endorsement of 'insufficient fund'. The demand notice was issued to Respondent No.2 on 10.5.2021, which was served on 17.5.2021 to the Respondent No.2. However, the cheque amount was not paid nor has given any reply to the demand notice. Therefore, the private complaint being Criminal Case No.801 of 2021 was filed with the Competent Court under Section 138 of the Negotiable Instruments Act. The process came to be issued by the learned Court, vide an order dated 25.6.2021 under Section 204 of the Code of Criminal Procedure.
4. Thereafter, on 26.7.2023, the application was filed below Exh.32 by the complainant to grant an adjournment mentioning that the case is at the stage of the cross examination and to produce the additional evidence, however, learned advocate, Mr.Mihir Parikh, who is appearing on behalf of the complainant went to the Hospital for treatment of the father and therefore, time was sought, which was not granted by the learned Court. Page 3 of 9 Downloaded on : Wed Nov 08 20:35:52 IST 2023
NEUTRAL CITATION R/CR.A/2485/2023 JUDGMENT DATED: 03/11/2023 undefined Learned Court, thereafter, has passed the impugned order by which the complaint was ordered tobe dismissed for non prosecution by observing that since last 3 consecutive dates, the complainant is not remaining present, therefore, case could not be proceeded further. Therefore, exercising power provided under Section 256 of the Code of Criminal Procedure, the respondent No.2 was acquitted and complaint came to be dismissed, which is impugned before this Court.
5. Heard the learned advocates for the parties.
6. Learned advocate, Mr.Altaf V. Charkha, for the appellant submits that impugned order which was passed dismissing the matter for default is required to be interfered with. As on the day when the impugned order was passed, the father of the learned advocate, who is taking care of the matter, was hospitalized and therefore, the adjournment application was filed. The learned Court by rejecting the same on 26.7.2023 and immediately on the same day, without giving an opportunity, the impugned order was passed. Learned advocate submits that learned Court would have necessarily implied as to whether the complainant was absent for Page 4 of 9 Downloaded on : Wed Nov 08 20:35:52 IST 2023 NEUTRAL CITATION R/CR.A/2485/2023 JUDGMENT DATED: 03/11/2023 undefined any good reason or not and on dismissing the complaint, the complainant would left remediless. Learned advocate submits that even looking to the provision where it is provided that this power under Section 256 of the Code of Crimimnal Procedure can be exercised on non appearance or death of the complainant. On the day, when the impugned order was passed, learned advocate Mr.S.M.Dholani, appeared and filed an application seeking adjournment on the ground of non availability of the learned advocate who is taking care of the matter. Therefore, it cannot be said that there was no one appeared and Exh.32 application was filed by learned advocate Mr.S.M.Dholani. By submitting the same, learned advocate states that complainant would ensure that if the matter is restored to its original file, then no unnecessary adjournment would be sought for and would see that case is concluded without further delay.
7. On the other hand, learned advocate, Mr.Jigar Patel, submits that since last 3 consecutive dates, the complainant is not remaining present and the case was delayed because of non remaining present and non producing the relevant documents on record and therefore, learned Court had rightly dismissed the case Page 5 of 9 Downloaded on : Wed Nov 08 20:35:52 IST 2023 NEUTRAL CITATION R/CR.A/2485/2023 JUDGMENT DATED: 03/11/2023 undefined and declared the acquittal of respondent No.2 accused and therefore, learned advocate prays that no interference is required and appeal is required to be dismissed.
8. Considering the arguments submitted by learned advocates for the respective parties, Section 256 of the Code of Criminal Procedure, 1973 is required to be relooked again.
Section 256 in The Code Of Criminal Procedure, 1973
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 Page 6 of 9 Downloaded on : Wed Nov 08 20:35:52 IST 2023 NEUTRAL CITATION R/CR.A/2485/2023 JUDGMENT DATED: 03/11/2023 undefined 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.
9. This Court has gone through the Record and proceedings of the case wherein, it is found that prior to the date, when the impugned order was passed, on 4.7.2013, it is observed that complainant is not remaining present. Even before that also on 13.6.2023, advocate of the complainant was present but neither the complainant nor accused was present. On the application of the accused, the case was adjourned for cross examination of the complainant. It transpires that the complainant was not present for last 3 consecutive dates but the learned advocate for the complainant was present and the time was sought either by the learned advocate for the complainant or learned advocate for the accused. This Court is of the view that proceedings under Page 7 of 9 Downloaded on : Wed Nov 08 20:35:52 IST 2023 NEUTRAL CITATION R/CR.A/2485/2023 JUDGMENT DATED: 03/11/2023 undefined Section 138 of the Negotiable Instruments Act though in criminal nature, do not really signify criminal intent and from the Act, basic object and purpose of which is to harness the violators of the transactions arising from mercantile law and to ensure that necessary commitment flows from the obligation and make them liable for criminal prosecution to achieve the aforesaid objection. In the present case, application was given that father of the learned advocate was unwell and was undergoing the treatment. The real test in the matter like the present one is always good faith. Therefore, before passing the impugned order, learned Court could have given one chance to the advocate of the complainant and could have adjourned the case. The principal of natural justice is required that due opportunity be given to the parties to adduce or produce the respective evidence before the Court and matter be decided on its own merits. Simultaneously, as due to default of the complainant, the respondent-accused has to come before this Court, therefore, the appropriate cost is required to be awarded to the accused while quashing and setting aside the impugned order. Therefore, this Court is of the view that impugned order deserves to be quashed and matter is Page 8 of 9 Downloaded on : Wed Nov 08 20:35:52 IST 2023 NEUTRAL CITATION R/CR.A/2485/2023 JUDGMENT DATED: 03/11/2023 undefined required to be restored to its original file. The appellant is directed to deposit the cost of Rs.15,000/- with the Registry of this Court within a period of 2 (two) weeks from today and same shall be disbursed to the respondent-accused after due verification. It is needless to say that the parties shall not seek adjournment unless warranted due to the emergency and would see that the case is concluded without further delay.
10. In view of the above, impugned order passed by the learned Additional Chief Judicial Magistrate, Godhra dated 26.7.2023 in Criminal Case No.801 of 2021.is quashed and set aside. Criminal Case is restored to its original file. Rule made absolute.
Records and proceedings be sent back forthwith.
(M. K. THAKKER,J) ASHISH M. GADHIYA Page 9 of 9 Downloaded on : Wed Nov 08 20:35:52 IST 2023