NEUTRAL CITATION
R/CR.A/1408/2023 JUDGMENT DATED: 08/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1408 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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MUHAMMAD HARUN ABDUL SAMAD DAYMA
Versus
STATE OF GUJARAT
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Appearance:
MUHAMMADYUSUF M KHARADI(9509) 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 : 08/11/2023
ORAL JUDGMENT
1. This Court has passed the following order on 23 rd October, 2023:
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NEUTRAL CITATION R/CR.A/1408/2023 JUDGMENT DATED: 08/11/2023 undefined "As per the endorsement of the board, Notice is served to the respondent no.2 - accused, but no-one has filed appearance. With a view to giving one more opportunity, let this matter be listed on 08.11.2023. In the meanwhile, record and proceedings be called for from the concerned Court so as to reach before this Court on or before 07.11.2023".
2. Today also, no one has represented the respondent- accused either through an advocate or in person.
3. This appeal is filed under Section 378 of the Code of Criminal Procedure challenging the judgment and order passed by the learned 2nd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Palanpur in Criminal Case No.876 of 2018 dated 14th November, 2022 acquitting the respondent from the charges and dismissing the complaint for non prosecution under Section 256 of the Code of Criminal Procedure.
4. It is the case of the complainant that complainant is in doing the business of Chicken and as accused was Page 2 of 8 Downloaded on : Thu Nov 09 20:45:03 IST 2023 NEUTRAL CITATION R/CR.A/1408/2023 JUDGMENT DATED: 08/11/2023 undefined purchasing the Chicken from the shop of the complainant, they were knowing to each other. Respondent-accused had purchased Chicken of Rs.1,11,101/- from the complainant on credit basis. On demanding the said amount, the cheque was issued for the amount of Rs.1 lac bearing Cheque No.200226 of State Bank of India, Radhanpur Branch. On depositing the cheuqe with the Bank, the same was returned with endorsement of "insufficient fund" on 18.1.2018. Therefore, after following procedure prescribed under the Negotiable Instruments Act, private complaint came to be filed under Section 138 of the Negotiable Instruments Act being Criminal Case No.876 of 2018 dated 14.11.2022.
5. The learned Court, after following the procedure, has issued the summons under Section 204 of the Code of Criminal Procedure vide an order dated 11.4.2018. As the respondent-accused was not remaining present on 8.8.2018 bailable warrant was issued and on 25.2.2021 non bailable warrant was issued. On the day when the order was passed, non bailable warrant was in existence. However, due to miscommunication on the part of the learned advocate and Page 3 of 8 Downloaded on : Thu Nov 09 20:45:03 IST 2023 NEUTRAL CITATION R/CR.A/1408/2023 JUDGMENT DATED: 08/11/2023 undefined the complainant, complainant could not remained present, neither learned advocate remained present, therefore, order was passed on 14th November, 2022 dismissing the case for non prosecution, which is impugned before this Court.
6. Heard learned advocate, Mr.M.M.Kharadi, for the appellant and learned APP, Mr.Bhargav Pandya, for the Respondent-State.
7. As the respondent-accused has chosen not to appear before this Court, despite sufficient opportunity, this Court deems it fit to hear the matter in his absence.
8. Learned advocate, Mr.Kharadi, for the appellant submits that learned Court, before passing the order, had not properly considered the Rojkam entries wherein, it transpires that prior to the date, when the order was passed on 17 th October, 2022, though it was recorded that parties were not present but learned Court was under the training and therefore, the matter was adjourned on 14 th November, 2022. Before that, on 19.9.2022, there was no any absence or Page 4 of 8 Downloaded on : Thu Nov 09 20:45:03 IST 2023 NEUTRAL CITATION R/CR.A/1408/2023 JUDGMENT DATED: 08/11/2023 undefined presence was recorded, however, it is in the stamp, it transpires that non bailable warrant is in existence and therefore, the matter is adjourned. Prior to that date i.e. on 1.8.2022, it is recorded by the learned Court that complainant's advocate is present, accused is absent, therefore, non bailable warrant was issued.
9. Considering the arguments advanced by the learned advocate for the respective parties, it transpires that before taking the matter on merits, relevant provision under 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.
(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 Page 5 of 8 Downloaded on : Thu Nov 09 20:45:03 IST 2023 NEUTRAL CITATION R/CR.A/1408/2023 JUDGMENT DATED: 08/11/2023 undefined 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."
10. 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 other day under provision of Section 256 of the Code of Criminal Procedure.
11. This Court is of the view that instead of dismissing the matter on technical ground, learned Court could have given one opportunity to the complainant to lead the evidence and to prove the case. From the Rojkam, it transpires that default which was committed for not remaining present i.e. on Page 6 of 8 Downloaded on : Thu Nov 09 20:45:03 IST 2023 NEUTRAL CITATION R/CR.A/1408/2023 JUDGMENT DATED: 08/11/2023 undefined 17.10.2022 and 14.11.2022, the impugned order was passed. Therefore, this Court is of the view that aforesaid impugned order is required to be quashed and set aside.
12.. 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. As this matter is pending since 2018, therefore, appropriate cost is required to be awarded. Therefore, present appellant is directed to pay cost of Rs.15,000/- with the Registry of this Court. Registry is directed to transmit an amount of Rs.15,000/- in the account of Shisu Gruh, Paldi, Ahmedabad by electronic mode or NEFT within a period of 4 (four) weeks from today. It is further clarified that no any unnecessary adjournments would be sought for before the learned trial Court and both the parties would co-operate with the trial and to see that matter is concluded without any further delay.
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NEUTRAL CITATION R/CR.A/1408/2023 JUDGMENT DATED: 08/11/2023 undefined
13. In view of the above, this appeal is allowed. The impugned judgment and order passed by the learned 2nd Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Palanpur in Criminal Case No.876 of 2018 dated 14th November, 2022 is quashed and set aside. Matter is restored to its original file.
14. Record and proceedings be sent back forthwith.
(M. K. THAKKER,J) ASHISH M. GADHIYA Page 8 of 8 Downloaded on : Thu Nov 09 20:45:03 IST 2023