NEUTRAL CITATION
R/CR.A/1364/2023 JUDGMENT DATED: 08/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1364 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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SHRI RAM TRANSPORT FINANCE CO. LTD THRO KULDEEPSINH
NIRMALSINH ZALA
Versus
STATE OF GUJARAT
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Appearance:
MR MANISH J PATEL(2131) for the Appellant(s) No. 1
MS NAMRATA R MULCHANDANI(9956) for the Appellant(s) No. 1
MR BHARGAV PANDYA, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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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 on 2.10.2023, thereafter, the matter was Page 1 of 7 Downloaded on : Thu Nov 09 20:45:02 IST 2023 NEUTRAL CITATION R/CR.A/1364/2023 JUDGMENT DATED: 08/11/2023 undefined adjourned on 1.11.2023 and today is the second returnable date where neither respondent No.2 in person or through an advocate is present before this Court to oppose this appeal.
2. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 ('the Code' for short), challenging the order passed by the learned 3rd Additional Chief Judicial Magistrate, Surendranagar in Criminal Case No.490 of 2019, dismissing the complaint dated 27.4.2023 on the ground of non prosecution and the respondent-accused came to be acquitted.
3. It is the case of the complainant that the appellant is the finance company and lent money to the respondent-accused on 30.7.2012 by agreement No. SURNG0207300003 of Rs.6,75,000/- against the mortgage of vehicle bearing No.GJ-18- AT-8918. As the complainant did not pay the loan amount and issued cheque in favour of the appellant bearing Cheque No.367951 for the amount of Rs.6,75,000/- and Cheque No.367952 for the amount of Rs.3,07,460/-. On depositing the same, the cheque was returned with endorsement of 'account closed'. Therefore, after following the procedure prescribed Page 2 of 7 Downloaded on : Thu Nov 09 20:45:02 IST 2023 NEUTRAL CITATION R/CR.A/1364/2023 JUDGMENT DATED: 08/11/2023 undefined under provisions of the Negotiable Instruments Act, the private complaint came to be filed being Criminal Case No.490 of 2019. The learned Court, after following procedure, had issued the process vide order dated 3.4.2019. Thereafter from time to time the matter was adjourned. On the date when the impugned order was passed, i.e. on 27.4.2023, the complainant nor his advocate remained present, therefore, by exercising powers provided under Section 256 of the Code, the learned Court had dismissed the complaint for non-prosecution which is impugned before this Court.
4. Heard learned advocate Mr. M.J. Patel for the appellant and learned APP Mr. Bhargav Pandya for the respondent No.1 State. As respondent No.2 accused is not represented, in his absence, the matter is taken up for final hearing.
5. Learned advocate Mr. Patel submits that due to oversight, the learned advocate committed single default in remaining present on the day when the impugned order was passed. Learned advocate Mr. Patel submits that in fact, prior to the date when the impugned order was passed, i.e. on 27.4.2023, Page 3 of 7 Downloaded on : Thu Nov 09 20:45:02 IST 2023 NEUTRAL CITATION R/CR.A/1364/2023 JUDGMENT DATED: 08/11/2023 undefined the learned advocate for the complainant was present and given the application below Exh. 44 to adjourn the matter on the ground that the power of attorney of the complainant is not available and as the case is at the stage of cross-examination of the complainant, request was made to adjourn the matter which was granted and thereafter the matter was kept on 27.4.2023 on the day when impugned order passed. Learned advocate Mr. Patel submits that at the time of issuing the notice, this Court has ordered to deposit the costs of Rs.10,000/- with the Nazir of the concerned court which was complied and it was deposited and the same is lying with the concerned court. Learned advocate Mr. Patel further submits that if the matter is restored to its original file, then the complainant would ensure to the court that no unnecessary adjournment would be asked for and the case would be concluded without further delay.
6. Considering the submissions advanced by learned advocate for appellant and on perusing records, it transpires from the Rojkam that on the day when the impugned order was passed, the application below Exh. 45 was given by the accused seeking exemption. Therefore, it transpires that the accused Page 4 of 7 Downloaded on : Thu Nov 09 20:45:02 IST 2023 NEUTRAL CITATION R/CR.A/1364/2023 JUDGMENT DATED: 08/11/2023 undefined was also not present on the day when the order was passed and they were also seeking time. As the case is at the stage of cross- examination of the complainant and when the application was given below Exh. 45 by learned advocate which was granted also, there was no question arise for delaying the proceedings due to default of the complainant. As from the Rojkam, it further transpires that on earlier date, i.e. on 20.4.2023, the complainant's advocate was present and the application was given at Exh. 44 and application below Exh. 43 was given by the accused for seeking exemption which came to be granted by the learned Court below. Therefore, this Court is of the view that instead of dismissing the matter on technical ground, the learned Court would have granted one opportunity to the complainant and could have adjourned the case and decided the matter on merits after giving opportunity of leading evidence.
7. Considering the issue involved in the matter, 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 5 of 7 Downloaded on : Thu Nov 09 20:45:02 IST 2023
NEUTRAL CITATION R/CR.A/1364/2023 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."
8. 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 6 of 7 Downloaded on : Thu Nov 09 20:45:02 IST 2023 NEUTRAL CITATION R/CR.A/1364/2023 JUDGMENT DATED: 08/11/2023 undefined other day under provision of Section 256 of the Code of Criminal Procedure.
9. 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 concerned Court is directed to transfer the amount of the costs with the Legal Aid Service Authority of the concerned district 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 cooperate with the trial and to see that matter is concluded without any further delay.
10. In view of the above, impugned order dated 27.4.2023 passed by the learned 3rd Additional Chief Judicial Magistrate, Surendranagar in Criminal Case No.490 of 2019 is quashed and set aside. Criminal Case is restored to its original file. Rule made absolute. Record & Proceedings be sent back forthwith.
(M. K. THAKKER,J) Bharat Page 7 of 7 Downloaded on : Thu Nov 09 20:45:02 IST 2023