NEUTRAL CITATION
R/CR.A/2338/2023 JUDGMENT DATED: 09/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2338 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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PATEL BHOGILAL HARIBHAI
Versus
STATE OF GUJARAT
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Appearance:
MR VAIBHAV N SHETH(5337) for the Appellant(s) No. 1
MR BHARGAV PANDYA APP 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 : 09/11/2023
ORAL JUDGMENT
1. Though endorsement on the cause list shows that 'Rule' is served to Respondent No.2 and as per the Report submitted by Page 1 of 9 Downloaded on : Thu Nov 09 20:52:32 IST 2023 NEUTRAL CITATION R/CR.A/2338/2023 JUDGMENT DATED: 09/11/2023 undefined the Registry, 'Rule' was stated to be served on 30 th October, 2023 and thereafter, matter was listed on 2 nd November, 2023 and it was further adjourned for today. However, Respondent No.2 either in person or through an advocate remained fails to appear before this Court. Hence, this appeal was decided finally in absence of the respondent No.2-accused.
2. This appeal is filed under Section 378 of the Code of Criminal Procedure, challenging the judgment and order of acquittal dated 26.7.2023 passed by the learned Judicial Magistrate First Class, Himmatnagar in Criminal Case No.6761 of 2019.
3. It is the case of the complainant that complainant is doing the agricultural work and accused is having the Tea Canteen near Union Bank of India, Himmatnagar Branch. The complainant used to visit the Bank and therefore, complainant and the accused were known to each other and were having transactions for taking the money and paying back to the complainant. It is he case of the complainant that complainant had lent an amount of Page 2 of 9 Downloaded on : Thu Nov 09 20:52:32 IST 2023 NEUTRAL CITATION R/CR.A/2338/2023 JUDGMENT DATED: 09/11/2023 undefined Rs.2 lacs against which cheque was issued on 25.9.2019 of Union Bank of India, Himmatnagar Branch bearing Cheque No.12072173, which was dishonored on depositing with the Bank and therefore, after following the procedure prescribed under the Negotiable Instruments Act, a private complaint came to be filed under Section 138 of the Negotiable Instruments Act as well as for the offence punishable under Section 420 and 406 of the Indian Penal Code. Learned Court, after recording the plea, had issued the summons vide an order dated 30.12.2019 and the accused appeared before the trial Court on 4.5.2023 on receiving the Non Bailable Warrant. As the complainant did not appear before the Court when the impugned order was passed i.e. 26.7.2023, learned Court exercised the power under Section 256 of the Code of Criminal Procedure and dismissed the complaint for non prosecution and acquitted the respondent-accused from the charges, which is impugned before this Court.
4. Learned advocate, Mr.Vaibhav Sheth, for the appellant submits that complainant was under the judicial custody pursuant to the judgment and order of the conviction passed by Page 3 of 9 Downloaded on : Thu Nov 09 20:52:32 IST 2023 NEUTRAL CITATION R/CR.A/2338/2023 JUDGMENT DATED: 09/11/2023 undefined the learned Additional Chief Judicial Magistrate, Khedbrahma dated 14.3.2022 in Criminal Case No.56 of 2020 wherein for the offence punishable under Section 138 of the Negotiable Instruments Act and it was ordered to undergo sentence of 1 year simple impression. Learned advocate further submits that there was a judgment and order of conviction passed by the learned Court, namely, 4th Additional Judicial Magistrate First Class, dated 2.3.2023 in Criminal Case No.953 of 2018 wherein, the complainant was ordered to undergo sentence of 6 months' simple imprisonment in connection with offence punishable under Section 138 of the Negotiable Instruments Act. Learned advocate drawn the attention of this Court with regard to the RTI information, which was provided on 27.3.2023 wherein, it is observed that both the sentences would run consecutively. Learned advocate submits that as after completion of one sentence was ordered to undergo and it was ended approximately in the month of October, 2023. Learned advocate submits that though the accused appeared on issuance of the Non Bailable Warrant on 4.5.2023, learned Court had passed an order dated 26.7.2023 dismissing the complaint for non Page 4 of 9 Downloaded on : Thu Nov 09 20:52:32 IST 2023 NEUTRAL CITATION R/CR.A/2338/2023 JUDGMENT DATED: 09/11/2023 undefined prosecution. Learned advocate submits that though from the Rojkam it transpires that vide an order dated 4.7.2023 the notice to the complainant was issued making it returnable on 26.7.2023, however, the same could not be served as complainant was under judicial custody for that period. Learned advocate submits that as he was under the custody, he could remained present. Mr.Sheth, learned advocate submits that neither the learned advocate remained present nor he could not remained present before the Court. Learned advocate for the appellant submits that if the matter is restored to its original file, it would be concluded without further delay.
5. Considering the submission advanced by the learned advocate for the appellant and considering the record, it transpires that on issuance of Non Bailable Warrant, the respondent-accused remained present on 4.5.2023. On next date, i.e. on 8.5.2023 accused has not remained present and the matter was adjourned. On 11.5.2023 on that day, as per the record, it transpires that neither the complainant or the learned advocate nor the accused were present and therefore, matter Page 5 of 9 Downloaded on : Thu Nov 09 20:52:32 IST 2023 NEUTRAL CITATION R/CR.A/2338/2023 JUDGMENT DATED: 09/11/2023 undefined was adjourned to 22.5.2023. On 22.5.2023, learned Court was on leave and therefore, it was adjourned to 13.6.2023. On 13.6.2023, application was given below Exh.16 by the learned advocate for the accused that as the respondent-accused needs some instructions, the time was sought for, which was granted by the learned Court and matter was adjourned on 4.7.2023. On 4.7.2023, the notice was issued to the complainant as he was not remained present and matter was adjourned to 26.7.2023. Again on 26.7.2023, application below Exh.17 was given by the learned advocate for the accused seeking time on the ground that accused is sick and therefore, he could not remained present. Though application was given by the learned advocate for the accused, learned trial Court dismissed the complaint for non prosecution of exercising the power under Section 256 without giving opportunity to the complainant to lead the evidence. From the record, it appears that on the day when the order was passed, the complainant was serving the sentence before the Himmatnagar jail as per RTI information dtd. 27.3.2023. This Court is conscious of the fact with regard to the custody of the complainant, learned Court would not have the knowledge. Page 6 of 9 Downloaded on : Thu Nov 09 20:52:32 IST 2023
NEUTRAL CITATION R/CR.A/2338/2023 JUDGMENT DATED: 09/11/2023 undefined However, when the application was given by the learned advocate for the accused seeking time, instead of dismissing the complaint, learned trial Court could have adjourned the case.
6. 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 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 Page 7 of 9 Downloaded on : Thu Nov 09 20:52:32 IST 2023 NEUTRAL CITATION R/CR.A/2338/2023 JUDGMENT DATED: 09/11/2023 undefined complainant is due to his death."
7. 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.
8. 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 the complainant was facing the Case under Section 138 of the Negotiable Instruments Act, this Court deems it fit not to impose the cost looking to the genuine reason. 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 Page 8 of 9 Downloaded on : Thu Nov 09 20:52:32 IST 2023 NEUTRAL CITATION R/CR.A/2338/2023 JUDGMENT DATED: 09/11/2023 undefined further delay.
9. In view of the above, this appeal is allowed. The judgment and order of acquittal dated 26.7.2023 passed by the learned Judicial Magistrate First Class, Himmatnagar in Criminal Case No.6761 of 2019 is quashed and set aside. Matter is restored to its original file.
Record and proceedings be sent back forthwith.
(M. K. THAKKER,J) ASHISH M. GADHIYA Page 9 of 9 Downloaded on : Thu Nov 09 20:52:32 IST 2023