Dharmesh Bhogilal Patel ... vs Manishbhai Gandabhai Patel
2021 Latest Caselaw 4362 Guj

        R/CR.A/1102/2020                                       JUDGMENT



       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/CRIMINAL APPEAL NO. 1102 of 2020

FOR APPROVAL AND SIGNATURE: Sd/-

HONOURABLE MS. JUSTICE BELA M. TRIVEDI
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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 ?                             Yes

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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     DHARMESH BHOGILAL PATEL PROPRIETOR OF VIKRAM DAIRY
                           Versus
            MANISHBHAI GANDABHAI PATEL & 1 other(s)
================================================================
Appearance:
MR JIGAR D DAVE(6528) for the Appellant(s) No. 1
MR PRAKASH G PANDYA(3041) for the Respondent(s) No. 1
MS C.M. SHAH APP (2) for the Respondent(s) No. 2
================================================================
 CORAM: HONOURABLE MS. JUSTICE BELA M. TRIVEDI

                            Date : 18/03/2021

                            ORAL JUDGMENT

1. The criminal appeal has been filed by the appellant

(original complainant) challenging the impugned order dated

18.08.2018 passed by the learned Additional Chief

Metropolitan Magistrate, Negotiable Instruments Act, Court

No.28, Ahmedabad (hereinafter referred to as "the Court

below") at Exhibit 1 in Criminal Misc. Application No.500/2014,

R/CR.A/1102/2020 JUDGMENT

whereby the Court below has dismissed the complaint of the

appellant - original complainant under Section 256 of the

Criminal Procedure Code (hereinafter referred to as "the

Cr.P.C.") and acquitted the respondent (original accused) from

the charges levelled against him under Section 138 of the

Negotiable Instruments Act (hereinafter referred to as "the

N.I. Act").

2. At the outset, learned advocate for the appellant submits

that though he had challenged the impugned order dated

06.02.2020 passed by the Court below in Criminal Misc.

Application No.500/2014, he does not press for the said

challenge. The learned advocate Mr.Dave has conceded that

the Trial Court did not have any power to review it's own

order. Accordingly, the prayer with regard to the quashing of

the order dated 06.02.2020 passed by the Court below in

Criminal Misc. Application No.500/2014 is dismissed as not

pressed for.

3. As regards the impugned order dated 18.08.2018 passed

by the Court below at Exhibit 1 in Criminal Misc. Application

No.500/2014, it appears that the same has been passed

invoking Section 256 of the Cr.P.C. which reads as under:-

R/CR.A/1102/2020 JUDGMENT

"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 officer conducting the prosecution or where the Magistrate is of opinion that the person 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"

4. As emerging from the bare reading of Section 256, the

issuance of the summons on the complaint to the accused is a

must before invoking the said Provision. If the summons has

been issued on the 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 could acquit the accused under the

said Provision.

5. The learned advocate Mr.Dave, for the appellant

vehemently submitted that there was no summons issued to

the respondent - accused nor any notice issued by the Court

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to the complainant as referred to in the impugned order and,

therefore, the Court below had committed a gross error

apparent on the face on record in dismissing the complaint and

in acquitting the respondent - accused under Section 256 of

the Cr.P.C. He further submitted that because of the shifting of

the Courts designated for the trial of the offences under

Section 138 of the N.I. Act, from Gheekanta to Apana Bazaar,

number of cases were misplaced or were found missing, and

that the parties were also not informed about such shifting of

the Courts. He also submitted that number of cases were

dismissed by the said Courts taking recourse to Section 256 of

the Cr.P.C. though, the summons were not issued to the

accused.

6. In view of the said submissions made by the learned

advocate Mr.Dave, the Court had directed him to file an

affidavit of the appellant placing on record such facts in

support of his submissions. The appellant having filed the

affidavit, the Court had called for the record and proceedings

of Criminal Misc. Application No.500/2014 from the concerned

Court below. From the perusal of the record and proceedings

of the said case, it appeared that there was no summons

issued to the respondent - accused by the Court below.

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Though in the Rojkam of 08.01.2016, it has been mentioned

that the notice be issued to the complainant, there is nothing

on record to show that such a notice was issued to the

complainant or that if issued, the same was received by the

complainant or not. It appears that the Rojkam was also not

properly drawn after the said date 08.01.2016. There is also

no mention in the Rojkam about the final order of dismissal of

the complaint passed by the Court on 18.08.2018. The

successor in the said Court, also while passing the order below

the review application filed by the appellant, has mentioned

about the non-availibility of the record of Rojkam of the order

dated 18.08.2018. Of course, the review application filed by

the appellant has been dismissed vide order dated 06.02.2020

and the said order though challenged by the appellant to the

present appeal has not been pressed for by the learned

advocate for the appellant as stated hereinabove, nonetheless,

the fact remains that in Criminal Misc. Application

No.500/2014, the concerned Court below had not issued the

summons to the respondent - accused and therefore the

question of the complainant not remaining present on the day

appointed for appearance of the accused did not arise.

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7. It may be noted that the provisions contained in Section

256 of the Cr.P.C. could be pressed into service only in case of

non-appearance or the death of the complainant and that too,

when the summons has been issued on complaint to the

accused and on the day appointed for the appearance of the

accused or any day subsequent thereto fixed by the Court, the

complainant does not appear. Under the circumstances, the

Court can acquit the accused invoking Section 256 of Cr.P.C.

However, in the instant case, the summons having not been

issued to the accused on the complaint of the complainant, the

Court below could not have pressed into service the said

Provision of Section 256 for the purpose of dismissing the

complaint of the complainant and acquitting the accused from

the charges levelled against him under Section 138 of the N.I.

Act.

8. In that view of the matter, the impugned order dated

18.08.2018 passed by the Court below being without

application of mind and dehorse the provisions of Section 256

of the Cr.P.C., the same deserves to be quashed and set aside

and accordingly, is quashed and set aside. The matter is

remanded to the Court below for the purpose of deciding it

afresh and in accordance with law.

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9. Before parting, it deserves to be mentioned that the

learned advocate Mr.Dave for the appellant had vehemently

submitted that due to the shifting of the Courts and non-

issuance of notices to the concerned complainants, they could

not remain present in the Court below and their cases have

been dismissed by the Courts invoking Section 256 of the

Cr.P.C. without even issuing the summons to the concerned

accused. This Court also had come across such cases earlier. It

is, therefore, requested to the Chief Judicial Metropolitan

Magistrate, Ahmedabad to look into the matter and take

appropriate action for the proper maintenance of the record in

each Court conducting the trials under Section 138 of the N.I.

Act, and further to see that the proper procedure in

accordance with law is followed before disposing any case.

10. The appeal stands allowed to the aforesaid extent.

Record and Proceedings be returned to the concerned Court

forthwith.

11. The office is directed to circulate the order to the

Subordinate Courts.

Sd/-

(BELA M. TRIVEDI, J) V.R. PANCHAL