NEUTRAL CITATION
R/CR.A/1175/2023 JUDGMENT DATED: 08/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1175 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or
any order made thereunder ?
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KALPATARU TRADERS COMPANY THRO MIHIR BABUBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR BHAVIK R SAMANI(8339) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2,3
MR BHARGAV PANDYA, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 08/11/2023
ORAL JUDGMENT
1. Though the endorsement on the cause list shows that the Rule is served and as per the report submitted by the Registry, Page 1 of 10 Downloaded on : Fri Nov 10 20:56:48 IST 2023 NEUTRAL CITATION R/CR.A/1175/2023 JUDGMENT DATED: 08/11/2023 undefined the same was served on 22.6.2023, no one has filed appearance to oppose this appeal. Therefore, this Court deems it fit to consider the appeal in absence of the respondent-accused.
2. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 ('the Code' for short), challenging the order of dismissal of complaint dated 8.2.2023 on the ground of non prosecution passed by the learned Additional Judicial Magistrate (First Class), Kalol in Criminal Case No.3021 of 2019 and the respondent-accused came to be acquitted.
3. It is the case of the complainant that the complainant is doing the business of building material and accused No.1 is the company who is doing the business of construction, whereas accused No.2 is proprietor of accused No.1 company. The accused had approached to the complainant by saying that they got a tender for construction of the water tank, Bileshwarpura Gram Panchayat and for that, building material is required which the accused proposed to purchase from the complainant. The respondent-accused had purchased the material for the amount of Rs.1,61,085/- on credit basis and given assurance Page 2 of 10 Downloaded on : Fri Nov 10 20:56:48 IST 2023 NEUTRAL CITATION R/CR.A/1175/2023 JUDGMENT DATED: 08/11/2023 undefined that within a period of three months, the bill would be cleared and the amount would be paid. As after three months, repayment of the bill amount was not made, therefore, the demand was raised and the respondent-accused towards the payment of the bill issued cheque bearing No.000233 for the amount of Rs.89,771/- dated 25.3.2019 of Mehsana Urban Co- operative Bank, C.T.M. Cross Road Branch, Ahmedabad and for other amount of Rs.21,340/-, cheque bearing No.000646 was issued. The assurance was given that on depositing the cheque, the amount would would be credited in the account of the complainant. On depositing the same, cheque was dishonoured with the endorsement of 'insufficient fund' and for which, return memo was issued by the bank on 6.4.2019. Therefore, the demand was raised and after following the procedure prescribed under the Negotiable Instruments Act, a private complaint came to be filed being Criminal Case No.3021 of 2019. The learned Court below had issued the process under Section 204 of the Code on 18.7.2019 and thereafter, the matter was adjourned from time to time.
4. It is submitted by learned advocate Mr. Samani that there Page 3 of 10 Downloaded on : Fri Nov 10 20:56:48 IST 2023 NEUTRAL CITATION R/CR.A/1175/2023 JUDGMENT DATED: 08/11/2023 undefined was a communication gap between the learned advocate for the complainant and the complainant and there was some dispute with regard to the charges, therefore, the learned advocate was not remained present and neither the dates were informed to the complainant, so that he can remain present and in absence of the learned advocate for the complainant and the complainant, the impugned order was passed on 8.2.2023 dismissing the complaint for non-prosecution which is impugned before this Court.
5. Learned advocate Mr. Samani submits that there is no dispute that for 4 to 5 occasions, the complainant or his advocate remained absent, but due to reason mentioned hereinabove, the complainant could not remain present. He submits that the learned Court had given due opportunity by adjoining the case from time to time, but as due default of the complainant, injustice would be caused to the parties and meritorious case would suffer because of absence of learned advocate. Learned advocate for the complainant submits that the complainant would ensure that he would not seek any unnecessary adjournment and would see that trial is concluded Page 4 of 10 Downloaded on : Fri Nov 10 20:56:48 IST 2023 NEUTRAL CITATION R/CR.A/1175/2023 JUDGMENT DATED: 08/11/2023 undefined without further delay. Learned advocate Mr. Samani prays that he is also ready to deposit the costs of Rs.10,000/- (Rupees Ten Thousand only) if the impugned order is quashed and the matter is restored to its original file.
6. As it is observed in the beginning that the learned advocate for the respondent or the respondent in person had chosen not to appear before the learned Court, this Court has heard learned advocate Mr. Samani and learned APP Mr.Pandya.
7. Considering the submissions made by learned advocate Mr. Samani, it transpires from the Rojkam that on 3.7.2022, the complainant and the accused were not present. Prior to that presence was recorded of the complainant as on 13.7.2022, both the advocate as well as the complainant was not present, therefore, the matter was adjourned on 7.9.2022. On that day, the learned Court was on leave, therefore, the matter was adjourned on 2.11.2022. Absence of the complainant was recorded, however, there was a resolution from the Bar, therefore, the matter was adjourned on 30.11.2022. On Page 5 of 10 Downloaded on : Fri Nov 10 20:56:48 IST 2023 NEUTRAL CITATION R/CR.A/1175/2023 JUDGMENT DATED: 08/11/2023 undefined 30.11.2022, the accused was present and the application was given under Section 256 of the Code, for which the learned Court had issued the notice to the complainant and the matter was adjourned on 4.1.2023. On 4.1.2023, nothing is mentioned with regard to the service of notice to the complainant, but fact recorded that the complainant was absent and the accused and the learned advocate were present. Again it is recorded that the notice is required to be issued to the complainant and the matter was adjourned on 8.2.2023. On 8.2.2023, there was no any reference with regard to the service of notice, however, the impugned order was passed and the complaint was dismissed for non-prosecution. It appears from the record that the learned Court had exercised the powers after giving due opportunity to the complainant and after issuing the notice, but from the record, it does not reflect that whether the notice which was issued was served to the complainant or not. Learned advocate Mr. Samani submits that there was no notice received by him which was issued by the learned Court below. As it does not transpire that whether the notice was served or not and the conclusion was arrived that the notice was served and he failed Page 6 of 10 Downloaded on : Fri Nov 10 20:56:48 IST 2023 NEUTRAL CITATION R/CR.A/1175/2023 JUDGMENT DATED: 08/11/2023 undefined to remain present before the learned Court. It is true that the matter was adjourned from time to time on account of absence of the learned advocate for the complainant and the complainant, but in the cases relating to the Negotiable Instruments Act, the complainant who had received the cheque with hope of honouring the same, unfortunately, the same was dishonoured and the only remedy which he had approached that is to file before the concerned Court under Section 138 of the Negotiable Instruments Act. On dismissing the complaint for non-prosecution, this Court is of the view that the complainant would be remediless as these are the proceedings which are barred by limitation. This Court is of the view that the principles of natural justice are required and due opportunity to lead the evidence before the concerned Court is required to be given to the complainant and the case is required to be considered on its own merits instead of technical dismissal.
8. Section 256 of the Code of Criminal Procedure, 1973 is required to be re-looked which is reproduced hereinbelow.
"256. Non- appearance or death of complainant.Page 7 of 10 Downloaded on : Fri Nov 10 20:56:48 IST 2023
NEUTRAL CITATION R/CR.A/1175/2023 JUDGMENT DATED: 08/11/2023 undefined (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."
9. In a case under Section 138 of the Act it is always complainant who is at stake for his money which ought to have paid through the cheque. 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 Page 8 of 10 Downloaded on : Fri Nov 10 20:56:48 IST 2023 NEUTRAL CITATION R/CR.A/1175/2023 JUDGMENT DATED: 08/11/2023 undefined other day under provision of Section 256 of the Code of Criminal Procedure.
10. This Court is of the view that due opportunity is required to be given to the parties to adduce and/or produce their respective evidence before the concerned Court and matter is required to be decided on merits instead of this technical dismissal. The appellant is directed to deposit the cost of Rs.10,000/- (Rupees Ten Thousand only) with the Registry of this Court within a period of 4 (four) weeks from today and in turn, the Registry is directed to remit in the account of Shishu Gruh, Paldi by way of cheque. It is further clarified that no any unnecessary adjournments would be sought for before the learned trial Court and both the parties would cooperate with the trial and to see that matter is concluded without any further delay.
11. In view of the above, impugned order dated 8.2.2023 passed by the learned Additional Judicial Magistrate (First Class), Kalol in Criminal Case No.3021 of 2019 is quashed and set aside. Criminal Case is restored to its original file. Rule Page 9 of 10 Downloaded on : Fri Nov 10 20:56:48 IST 2023 NEUTRAL CITATION R/CR.A/1175/2023 JUDGMENT DATED: 08/11/2023 undefined made absolute. Records & Proceedings be sent back forthwith.
Sd/-
(M. K. THAKKER,J) Bharat Page 10 of 10 Downloaded on : Fri Nov 10 20:56:48 IST 2023