Gujarat High Court
Shri Baroda Municipal Corporation ... vs State Of Gujarat on 2 April, 2025
NEUTRAL CITATION
R/CR.A/1137/2023 ORDER DATED: 02/04/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1137 of 2023
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SHRI BARODA MUNICIPAL CORPORATION EMPLOYEES UNION THRO
RAMESHBHAI RAMSINHBHAI THAKOR (DECD.)
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR NAYAN L GUPTA(11798) for the Appellant(s) No. 1
MR HANNAN A QURESHI(11351) for the Opponent(s)/Respondent(s) No. 2
MR RJ GOSWAMI(1102) for the Opponent(s)/Respondent(s) No. 2
MS. DHWANI TRIPATHI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 02/04/2025
ORAL ORDER
1. The present appeal is filed by the appellant - original complainant under Section 419(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short "BNSS") seeking leave to file an appeal against the order dated 17.02.2023 passed by the Court of learned Special Judge, NIA, Special Court, Vadodara (hereinafter referred to as the "learned Trial Court") in Criminal Case No. 63589 of 2013, whereby the learned Trial Court has dismissed the Criminal Case for want of prosecution as the applicant did not remain present under the provisions of Section 256(3) of Cr.P.C. and the respondent - original accused came to be acquitted from the offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI Act").
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1.1 The respondent No.2 is hereinafter referred to as "the accused" as he stood in the original case for the sake of convenience, clarity and brevity.
2. The brief facts culled out from the memo of the present appeal as well as the record and proceedings are as under:
2.1 The appellant was the President of Baroda Municipal Corporation and the respondent No. 2 was working as a General Secretary and was looking after the income and expenditure and had misappropriated an amount of Rs.2,90,393/-. When the amount was demanded from the respondent No.2, the respondent No. 2 gave cheque No. "000154" for Rs.75,000/- dated 15.07.2023 and the applicant had deposited the cheque in his bank account but the same returned unpaid with the endorsement "
"Payment Stopped by the Drawer". The demand statutory notice was given which was duly served to the respondent No. 2 but an evasive reply was given and the amount was not paid and hence, the complaint was filed under Section 138 of the NI Act before the Court of the Chief Judicial Magistrate, Vadodara, which was registered as Criminal Case No. 63589 of 2013.
2.2 The respondent No.2 appeared before the learned Trial Court and the entire evidence was taken on record and the matter was posted for recording of the further statement of the respondent No. 2 under Section 313 of the Code of Criminal Procedure, 1973. The further statement of Page 2 of 7 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:43:40 IST 2025 NEUTRAL CITATION R/CR.A/1137/2023 ORDER DATED: 02/04/2025 undefined the respondent No. 2 was recorded on 19.10.2022 and the matter was pending for the arguments of the learned advocates for the parties but without considering that the entire evidence was already on record, the learned Special Judge, NI Act, Special Court, Vadodara by an order dated 17.02.2023, was pleased to dismiss the complaint under Section 256 of the Code of Criminal Procedure, 1973 and acquit the respondent No. 2 from the offence under Section 138 of the NI Act.
3. Being aggrieved and dissatisfied by the impugned order, the appellant has preferred present appeal under Section 378 of the Code of Criminal Procedure, 1973.
4. Heard learned advocate Mr. Nayan L. Gupta appearing for the appellant, learned advocate Mr. Hannan A Qureshi for learned advocate Mr. R.J.Goswami for the respondent No.2 and learned APP Ms. Dhwani Tripathi for the respondent - State.
5. Learned advocate Mr. Nayan L. Gupta for the appellant submits that the learned Trial Court has failed to appreciate the facts and provisions of law in proper perspective and therefore the impugned judgment is unsustainable and bad in law. Learned advocate further submits that due to a bonafide mistake, the advocate of the appellant did not remain present on the date of passing of the impugned order and therefore, the same may be quashed and set aside.
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6. Learned APP Ms. Dhwani Tripathi for the respondent -state and learned advocate Mr. Qureshi appearing for the respondent No. 2 have submitted that after recording the absence of applicant, the learned Trial Court has passed the impugned order under Section 256 of the Cr.P.C. and hence, this Court may not interfere with the impugned order and have urged this Court to dismiss the present appeal.
7. As the matter has been dismissed by an order under Section 256 of the Cr.P.C. it is appropriate to have a glance of Section 256 of Cr.P.C. which reads as under:-
"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 complainant is due to his death."
8. At this stage, it is also appropriate to take into account the observations made by the Hon'ble Apex Court in the M/s. BLS Infrastructure Limited Vs M/s. Rajwant Singh & Others reported in 2023 4 SCC 326 in Para 20 which is reproduced as under:
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NEUTRAL CITATION R/CR.A/1137/2023 ORDER DATED: 02/04/2025 undefined "12. In Associated Cement Co. Ltd. (supra), the purpose of inserting a provision like Section 256 of the Code was discussed and in light thereof, in paragraph 16, it was observed as under:
"16. What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, the court has a duty to acquit the accused in invitum."
After observing as above, it was held that where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non- appearance of the complainant. Thus, the order of acquittal was set aside and it was directed that the prosecution would proceed from the stage where it reached before the order of acquittal was passed." 8.1 A coordinate bench of this Court in the case of Sureshchandra Chandulal Patni Vs Natwarlal Keshavlal Patni reported in 1992 1 GLR 626 observed in para 4 to 7 as under: -
"( 4 ) SECTION 256 of the Code of Criminal Procedure provides that 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 herein before contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day. The proviso to Sec. 256 further contemplates 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 Page 5 of 7 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:43:40 IST 2025 NEUTRAL CITATION R/CR.A/1137/2023 ORDER DATED: 02/04/2025 undefined attendance and proceed with the case.
( 5 ) IN the instant case, the learned Magistrate has not recorded any reason about his thinking it proper to adjourn the hearing of the case to some other date. It appears that he has ignored the proviso to Sec. 256 of the Code of Criminal Procedure. The power under Sec. 256 of the code of Criminal Procedure has been conferred on the Magistrate obviously in the interest of justice, with a view to seeing that the accused is not subjected to any undue harassment. It is clear from the proviso to Sec. 256 of the Code of Criminal Procedure that when the complainant is represented by a pleader or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with the personal attendance of the complainant and proceed with the case. In the instant case, the learned Magistrate does not appear to have applied his mind in dispensing with the personal attendance of the complainant and to proceed with the case or to adjourn the case to some other date as requested in the application submitted by the Advocate for the complainant. In the present case, the situation as on 5/03/1984 squarely falls within the aforesaid proviso and still the learned magistrate acted under sub-sec. (1) of Sec. 256 of the Code of Criminal Procedure acquitting the accused. It is, therefore, clear that the learned Magistrate has ignored the provision contained in proviso to Sec. 256 of the Code of Criminal procedure and therefore the order passed by him is illegal and unsustainable.
( 6 ) IN the case of State of Gujarat v. Keshavaram Shivram Devmurari and Anr. , (1977) XVIII GLR 524, this Court [ Coram : N. H. Bhatt, J. (as he then was)] observed that it was really unfortunate to dismiss the complaint in absence of the complainant and ignoring the proviso to Sec. 256 of the Code of Criminal procedure and it was held that the repetition of such instances would not be there in future in the Court of the Magistrate. However, it appears that this has been ignored while dismissing the complaint and acquitting the accused in the present case.
( 7 ) SIMILARLY, in the case of State of Gujarat v. Dhirajlal Pranslianker. Bhatt, reported in 1990 (1) GLH 466: (1990 (1) GLR 201), it is observed that the. Court should exercise sound judicial discretion and should adjourn the case when the complainant is absent and particularly when he is represented by an Advocate."
9 Upon a detailed examination of the record and proceedings of the learned Trial Court, prima- facie, it appears that the case was dismissed for default due to the absence of representation on behalf of the Baroda Page 6 of 7 Uploaded by VISHAL MISHRA(HC01088) on Fri Apr 04 2025 Downloaded on : Mon Apr 07 21:43:40 IST 2025 NEUTRAL CITATION R/CR.A/1137/2023 ORDER DATED: 02/04/2025 undefined Municipal Corporation following the demise of Mr. Rameshbhai R. Thakore. However, considering that the applicant is now representing the corporation and in light of the settled legal principles laid down by the Apex Court, it is apparent that the learned Trial Court erred in dismissing the matter despite the evidence of the appellant is evident on record.
10. Therefore, this Court finds it just and proper to allow the present appeal. Consequently, the order dated 17.02.2023, passed by the learned Special Judge (NIA), Special Court, Vadodara, in Criminal Case No. 63589 of 2013, is quashed and set aside, and the complaint is restored to its original status for adjudication on merits.
11. The learned Trial Court is directed to proceed with the trial in accordance with the law, ensuring a fair opportunity for all parties. Further, all parties are expected to cooperate with the Trial Court and refrain from seeking unnecessary adjournments to facilitate the expeditious disposal of the case.
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