Gujarat High Court
Rakshit Nitinbhai Patel vs State Of Gujarat on 5 February, 2024
NEUTRAL CITATION
R/CR.A/2058/2023 JUDGMENT DATED: 05/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2058 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 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 ?
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RAKSHIT NITINBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR RAKSHITKUMAR N PATEL(12486) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
MR.HIREN M MODI(3732) for the Opponent(s)/Respondent(s) No. 2
MS MONALI BHATT, ADDL.PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 05/02/2024
ORAL JUDGMENT
1. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 by Dr.Rakshit Nitinbhai Patel, Page 1 of 11 Downloaded on : Tue Feb 06 20:46:11 IST 2024 NEUTRAL CITATION R/CR.A/2058/2023 JUDGMENT DATED: 05/02/2024 undefined who is the party-in-person before this Court challenging the judgment and order of acquittal dated 28.04.2023 passed by the learned 10 th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Vadodara in Criminal Case No.18405 of 2021 dismissing the complaint by exercising the powers under Section 256 of the Code of Criminal Procedure, 1973 ('the Cr.P.C.' hereinafter).
2. It is the case of the complainant that the complainant had provided the treatment as a physio therapist to the wife of the respondent-accused, namely, Kundanben Patel and raised the bill. As there was a medical insurance of the accused, the bill was sent to the Bajaj Allianz General Insurance Company Limited for the clearance. At the time of the treatment, the two advance cheque was taken and there was an understanding between the respondent-accused and the complainant that after clearance of the amount of medical policy, for remaining amount, the cheque would be deposited in the Bank. As per the allegation made in the complaint for three months, the physio therapy treatment was given by the applicant. However, the insurance company did not Page 2 of 11 Downloaded on : Tue Feb 06 20:46:11 IST 2024 NEUTRAL CITATION R/CR.A/2058/2023 JUDGMENT DATED: 05/02/2024 undefined clear any amount, therefore, two cheques which were given in advance were deposited, which were dishonored for the reason mentioned in the memo Nos.1 and 20 i.e. "In Sufficient Funds" and "Payment Stopped by the Drawer." After following the procedure prescribed under the Act, the private complaint came to be filed before the Competent Court by the present applicant, who is physio therapist and advocate also.
2.1. On filing the complaint, summons came to be issued vide order dated 02.04.2021. The respondent- accused appeared before the learned trial Court on 27.06.2021. Thereafter, time to time the matter was adjourned after recording the plea of the respondent- accused. It transpires from the record that on the day when the impugned order was passed i.e. on 28.04.2023, the complainant did not remain present and therefore, the learned trial Court had dismissed the complaint for non-proseuction, which is impugned before this Court.
3. Heard the party-in-person, namely, Dr.Rakshit Nitinbhai Patel and learned advocate Mr.Hiren Modi for the Page 3 of 11 Downloaded on : Tue Feb 06 20:46:11 IST 2024 NEUTRAL CITATION R/CR.A/2058/2023 JUDGMENT DATED: 05/02/2024 undefined respondent-accused.
4. Party-in-person-Dr.Rakshit Patel has submitted that only on one occasion he was not remained present i.e. on 28.04.2023 and prior to that almost on all occasions he was present, however, the learned trial Court had dismissed the complaint for a single default. Mr.Patel has also submitted that the case is at the stage of cross examination of the complainant, after conducting some part of the cross-examination, the case was kept for producing the certificate as well as other relevant documents, which were sought during the cross examination.
4.1. Party-in-person Mr.Patel submits that though all relevant documents were placed on record, the case was being adjourned time to time without any genuine cause. Mr.Patel submits that if the complaint would be restored to its original file then he would cooperate with the trial and he would see that the trial is concluded within the time prescribed by the Court. By submitting the same, Mr.Patel prays that the complaint be ordered to restore to its original file and learned Page 4 of 11 Downloaded on : Tue Feb 06 20:46:11 IST 2024 NEUTRAL CITATION R/CR.A/2058/2023 JUDGMENT DATED: 05/02/2024 undefined trial Court may be directed to decide the case on merits after considering the evidence placed on record.
5. On the other hand, learned advocate Mr.Hiren Modi for the respondent-accused submits that the present applicant, who is an advocate and a physio therapist has given some treatment to the wife of the respondent- accused. Initially, the time for the treatment was fixed for three months, however, after giving one month's treatment he did not comply with his promise and the further treatment was not given to the wife of the respondent-accused. Learned advocate Mr.Modi further submits that the forge bills were created in the name of Shubh Hospital though there was no engagement by the Subh Hospital.
5.1. Learned advocate Mr.Modi further submits that in fact to put an end to this matter, cheque amount was deposited, though it was not admitted, but the applicant did not withdraw that amount with an ulterior motive to harass to respondent-accused. Learned advocate Mr.Modi further submits that in fact Page 5 of 11 Downloaded on : Tue Feb 06 20:46:11 IST 2024 NEUTRAL CITATION R/CR.A/2058/2023 JUDGMENT DATED: 05/02/2024 undefined he is ready to deposit the said amount before this Court also however, acceptance of the amount was denied by the party-in-person i.e. the applicant. Learned advocate Mr.Modi submits that the conduct of the complainant is also required to be looked into as in the midst of the cross examination the case was adjourned and he evaded the completion of the cross examination thereafter on being realized that real truth would surface on record, he did not remain present before the trial Court on two consecutive dates. By submitting same, learned advocate Mr.Modi prays to dismiss this appeal.
6. Considering the submissions advanced by the learned advocates for the respective parties, Section 256 of the Code of Criminal Procedure is required to be considered, 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 Page 6 of 11 Downloaded on : Tue Feb 06 20:46:11 IST 2024 NEUTRAL CITATION R/CR.A/2058/2023 JUDGMENT DATED: 05/02/2024 undefined 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 nonappearance of the complainant is due to his death."
7. Considering the above provisions, it transpires that two constraints are imposed on the Court for exercising the powers under Section 256 of the Code of Criminal Procedure. First is if the Court thinks that in a situation it is proper to adjourn the hearing, then the Magistrate shall not acquit the respondent - accused. Second is that the Magistrate considers that the personal attendance of the complainant is not necessary on that day, the Magistrate has power to dispense with his presence and to proceed with the case. If the situation does not justify the case being adjourned, the Court is free to dismiss the same and acquit the respondent - accused. But, if the presence of the complainant on that day was quite unnecessary, then resorting to the step of axing down the complaint Page 7 of 11 Downloaded on : Tue Feb 06 20:46:11 IST 2024 NEUTRAL CITATION R/CR.A/2058/2023 JUDGMENT DATED: 05/02/2024 undefined may not be proper exercise of the powers envisaged in Section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.
8. 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 of the Cr.P.C.
9. From the record it transpires that, the impugned order was passed on 28.04.2023 where the application was given by the respondent-accused below Exhibit 72 to exercise the power under Section 256 of the Cr.P.C. due to absence of the complainant. Prior to that day i.e. on 24.03.2023. The learned trial Court has mentioned in the rojkaam that advocate is present. It is not clear that the whether the complainant was present or not. Therefore, it Page 8 of 11 Downloaded on : Tue Feb 06 20:46:11 IST 2024 NEUTRAL CITATION R/CR.A/2058/2023 JUDGMENT DATED: 05/02/2024 undefined would be difficult to come to the conclusion that on the earlier date the complainant was not present as there was no any absence or presence of the complainant was recorded. Prior to that day i.e. 10.02.2023, the learned Court was on leave therefore the matter was adjourned. Before that i.e. on various dates the presence of the complainant is recorded by the learned trial Court. Therefore from the rojkaam, it transpires that only on the day when the impugned order was passed i.e. on 28.04.2023 the complainant remained absent.
10. The prosecution of private complaint for the offence under Section 138 of the N.I.Act largely differs from the prosecution of the complaint in respect of other offences punishable under the Indian Penal Code. For an offence under Section 138 of the N.I.Act, there is no remedy available for the complainant when the complaint is dismissed for default in view of the limitation prescribed.
11. The allegation made by both the parties is required to be proved before the learned trial Court by leading the evidence, therefore It would be inappropriate to entere into the allegations made by the complainant and the Page 9 of 11 Downloaded on : Tue Feb 06 20:46:11 IST 2024 NEUTRAL CITATION R/CR.A/2058/2023 JUDGMENT DATED: 05/02/2024 undefined respondent-accused at this stage. Principle of natural justice required that due opportunity be given to the parties to adduce/produce their respective evidences before the Court and the matter be decided on its own merits. Therefore, this Court is of the view that instead of dismissing the complaint on technical ground, learned trial Court ought to have decided the same after giving the due opportunity to both the parties on its merits.
12. From the record it transpires that the case was adjourned for time to time during the midst of the cross examination therefore, this Court is of the view that the complaint is required to be restored to its original file and the learned trial Court is required to be directed to decide the same as expeditiously as possible not beyond the period of four months from the date of receipt of a copy of this judgment. It is needless to say that the learned trial Court shall provide sufficient opportunity to both the parties and both the parties are directed to cooperate with the trial and shall not seek further adjournment.
13. With the aforesaid direction, this appeal is allowed. The impugned judgment and order of acquittal dated Page 10 of 11 Downloaded on : Tue Feb 06 20:46:11 IST 2024 NEUTRAL CITATION R/CR.A/2058/2023 JUDGMENT DATED: 05/02/2024 undefined 28.04.2023 passed by the learned 10 th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Vadodara in Criminal Case No.18405 of 2021 is hereby quashed and set aside. The criminal case is restored to its original file and complaint is sent back to the learned trial Court for deciding it on merits. Record and proceeding be sent back to the concerned Court, forthwith.
(M. K. THAKKER,J) M.M.MIRZA Page 11 of 11 Downloaded on : Tue Feb 06 20:46:11 IST 2024