NEUTRAL CITATION
R/CR.A/1147/2023 JUDGMENT DATED: 09/11/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1147 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
==========================================================
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 ?
==========================================================
JAY LAXMI INDUSTRIES THRO SARVAGNA JIGNESHKUMAR RAVAL
Versus
STATE OF GUJARAT
==========================================================
Appearance:
KUSHAL A DESAI(9435) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2
MR BHARGAV PANDYA, ADDL.PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 09/11/2023
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 15.02.2023 Page 1 of 12 Downloaded on : Fri Nov 10 21:02:48 IST 2023 NEUTRAL CITATION R/CR.A/1147/2023 JUDGMENT DATED: 09/11/2023 undefined passed by the learned Additional Judicial Magistrate First Class, Halol in Criminal Case No.1525 of 2019, dismissing the 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.2,25,766/ bearing cheque No.893709 dated 28.05.2019. On depositing the aforesaid cheque with the Dena Bank, Wav Branch, it was returned with an endorsement "fund Page 2 of 12 Downloaded on : Fri Nov 10 21:02:48 IST 2023 NEUTRAL CITATION R/CR.A/1147/2023 JUDGMENT DATED: 09/11/2023 undefined insufficient" on 30.05.2019. 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.1525 of 2019. Learned Court vide order dated 25.07.2019 issued the process under 204 of the Cr.P.C., making it returnable on 21.08.2019. Matter was adjourned time to time and ultimately, on the day when the impugned judgment and order was passed i.e. on 15.02.2023, learned Court had dismissed the complaint on the ground of non prosecution 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 Mr.Bhargav Pandya for the respondentState and as the Page 3 of 12 Downloaded on : Fri Nov 10 21:02:48 IST 2023 NEUTRAL CITATION R/CR.A/1147/2023 JUDGMENT DATED: 09/11/2023 undefined respondent No.2 had chosen not to appear despite having the sufficient opportunity, the case is deciding in his absence.
4.Learned advocate Mr.Kushal Desai submits that initially the summons was issued, making it returnable on 21.08.2019. On that day the application was given by the complainant to reissue the summons and the same was done making it returnable on 29.04.2022. On 29.04.2022, learned Court was on leave but on the ground that summons is to be issued to the accused, the matter was adjourned on 04.06.2022.Again, on that day the learned Court was on leave and case was adjourned for the issuance of the summons to the accused on 15.07.2022. On 15.07.2022, the summons was issued to the complainant and direct service was permitted and the matter was adjourned on 26.08.2022. On that day, the complainant had Page 4 of 12 Downloaded on : Fri Nov 10 21:02:48 IST 2023 NEUTRAL CITATION R/CR.A/1147/2023 JUDGMENT DATED: 09/11/2023 undefined changed the advocate, therefore, new advocate has filed the Vakalatnama and application was given for permitting the service of summons by direct service, which was granted and the matter was kept on 14.10.2022. On 14.10.2022 though the direct service was permitted, but it was not handed over to the learned advocate for the complainant, therefore, by observing that direct service is to be given to the learned advocate to serve to the respondentaccused, the matter was adjourned on 14.11.2022. On 14.11.2022, accused was not present, but the application was given by the learned advocate to issue the Bailable or NonBailable Warrant against the respondent accused and the matter was adjourned on 03.12.2022. It is submitted by the learned advocate Mr.Desai for the appellant that as new advocate came on the record and the case was at the stage of service of Bailable or Page 5 of 12 Downloaded on : Fri Nov 10 21:02:48 IST 2023 NEUTRAL CITATION R/CR.A/1147/2023 JUDGMENT DATED: 09/11/2023 undefined NonBailable Warrant as well as the learned advocate did not inform to the complainant with regard to the date, the complainant could not remain presentinperson neither learned advocate for the complainant was present. And, the learned Court by exercising the power under Section 256 of the Cr.P.C. passed an impugned judgment and order.
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.
6.Learned advocate Mr.Desai further submits Page 6 of 12 Downloaded on : Fri Nov 10 21:02:48 IST 2023 NEUTRAL CITATION R/CR.A/1147/2023 JUDGMENT DATED: 09/11/2023 undefined 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 Page 7 of 12 Downloaded on : Fri Nov 10 21:02:48 IST 2023 NEUTRAL CITATION R/CR.A/1147/2023 JUDGMENT DATED: 09/11/2023 undefined that accused is the resident of the State of Haryana 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 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:Page 8 of 12 Downloaded on : Fri Nov 10 21:02:48 IST 2023
NEUTRAL CITATION R/CR.A/1147/2023 JUDGMENT DATED: 09/11/2023 undefined 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 Section256 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 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 Page 9 of 12 Downloaded on : Fri Nov 10 21:02:48 IST 2023 NEUTRAL CITATION R/CR.A/1147/2023 JUDGMENT DATED: 09/11/2023 undefined 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 15.02.2023 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 complaint.
14. Learned Court ought to have followed the Page 10 of 12 Downloaded on : Fri Nov 10 21:02:48 IST 2023 NEUTRAL CITATION R/CR.A/1147/2023 JUDGMENT DATED: 09/11/2023 undefined 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 Page 11 of 12 Downloaded on : Fri Nov 10 21:02:48 IST 2023 NEUTRAL CITATION R/CR.A/1147/2023 JUDGMENT DATED: 09/11/2023 undefined allowed. The impugned judgment and order dated 15.02.2023 passed by the learned Additional Judicial Magistrate First Class, Halol in Criminal Case No.1525 of 2019 is quashed and set aside. The proceedings shall 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 12 of 12 Downloaded on : Fri Nov 10 21:02:48 IST 2023