Gujarat State Co-Operative ... vs State Of Gujarat
2022 Latest Caselaw 10262 Guj

     R/CR.A/1175/2022                                JUDGMENT DATED: 20/12/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1175 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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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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      GUJARAT STATE CO-OPERATIVE AGRICULTURE AND RURAL
     DEVELOPMENT BANKLTD THRO NAJIMMIYA GULAMNABI SHEKH
                            Versus
                      STATE OF GUJARAT
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Appearance:
MR.AMIT R JOSHI(6682) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2
MR HARDIK MEHTA APP for the Opponent(s)/Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 20/12/2022

                                 ORAL JUDGMENT

1. Mr. Amit R.Joshi, learned advocate for the

appellant submits that the challenge is given to the order

R/CR.A/1175/2022 JUDGMENT DATED: 20/12/2022

dated 21.01.2021 passed by 4th Additional Judicial

Magistrate, First Class, Himatnagar, dismissing the

Criminal Case No.5855 of 2015 for default under section

256 of the Code of Criminal Procedure, 1973 (for short

'Cr.P.C').

2. Mr. Joshi submits that the learned trial Court

Judge has seriously erred in not considering the

pandemic situation, which was beyond the control of the

appellant, and further the office of the appellant as

Gujarat State Cooperative Agriculture and Rural

Development Bank Ltd. has remained closed because of

prevailing circular at the relevant time issued by the

Government; the dismissal on the face of it, is bad in law.

2.1 Mr. Joshi further submits that the Hon'ble Apex

Court also while considering the pandemic situation had

extended the limitation period for filing the complaints

and the learned trial Court Judge oblivious of this

concession, granted to the litigants, has observed that

complainant had remained absent in spite of several

R/CR.A/1175/2022 JUDGMENT DATED: 20/12/2022

opportunities granted and under one or the other

reasons, the proceedings have been prolonged.

2.2 Mr. Joshi relying on the judgment of Meters

And Instruments Private Limited & Anr. Vs.

Kanchan Mehta, reported in 2018 (1) SCC 560,

submitted that the procedure for trial of the case has

normally to be a summary and evidence in case under

section 138 are to be given on affidavit, and in this case

the affidavit-in-chief has been produced on record vide

Exhibit-4.; the list of documents was at Exhibit-3, and

Exhibit-5 is an application for a prayer to exhibit the

documents. Mr. Joshi submitted that the learned trial

Court Judge could have closed the stage of cross-

examination rather than dismissing the matter outright,

which could have provided an opportunity to the

complainant to make a prayer for setting aside the order

of closure of evidence and getting it restored again at a

stage of cross-examination.

R/CR.A/1175/2022 JUDGMENT DATED: 20/12/2022

2.3 Mr. Joshi submitted that the complaint was filed

on 02.12.2015 and on 06.08.2018, the accused appeared

through a lawyer and has moved an application for bail at

Exhibit-15, and the plea was recorded on 28.11.2018. He

states that an application for quashing of the complaint

being Criminal Misc. Application No.24222 of 2018 was

preferred by the accused, and the writ of the same is on

record of the trial Court at Exhibit-19, the matter is still

pending hearing before this Court, and thereafter from

both side the adjournment was sought and after an

adjournment application at Exhibit-20 by the complainant

on 30.05.2019, subsequently all the applications for

adjourning the matter were moved by the accused. Mr.

Joshi states that from 30.04.2020 to 11.12.2020, the

matter was not listed on board, since no rojnama was

prepared, and on 11.12.2020 the matter again came for

recording of evidence of the complainant and after

adjournment on 05.01.2021, the matter was listed for

hearing on 21.01.2021.

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2.4 Mr. Joshi submitted that though the accused

and his advocate was present before the Court, they had

not apprised the learned trial Court about the pendency

of the Criminal Case before this Court, which is for

quashing of the complaint and the learned Judge, thus,

passed the impugned order of dismissing the complaint

observing as a default from the side of the complainant.

Mr. Joshi submitted that there was no negligence or any

carelessness from the side of the complainant. The

accused has challenged the complaint before this Court

and even keeping that fact into consideration, the learned

trial Court Judge ought not to have dismissed the matter

and acquitted the accused. Mr. Joshi further stated that

the learned trial Court Judge ought to have observed its

own proceedings before dismissing the matter.

3. Speedy trial is a fundamental right of the

accused; at the same time, every person has right to be

heard on merits, is a principle to be adopted by way of

principle of natural justice; no case should be condemned

R/CR.A/1175/2022 JUDGMENT DATED: 20/12/2022

unheard. Section 256 Cr.P.C. makes provisions that in

case, on the complaint, summons is issued for the

appearance of the accused and on the day appointed, or

any day subsequent thereto to which the hearing may be

adjourned, the complainant does not appear, the

Magistrate shall have the authority to acquit the accused,

unless for some reason he thinks it proper to adjourn the

case to some other day; at the same time, sub-section (1)

of section 256 Cr.P.C. is supported by a proviso which

clarifies that when the complainant is represented by

pleader or by the officer conducting the prosecution or

when the Magistrate is of the opinion that the personal

attendance of the complainant is not necessary, the

Magistrate may dispense his attendance and prosecute

with the case.

3.1 Thus, section 256 of the Cr.P.C. do give an

authority to the trial Court Judge to acquit the accused in

case the complainant does not appear, but if the

complainant is represented by an Advocate on record,

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then it becomes a bounden duty of the Magistrate

concerned to inquire about non-appearance of the

complainant as witness and to provide an opportunity to

explain the reasons for absence of the complainant on the

day when the Magistrate finds to come to a conclusion for

dismissal of the matter. Generally, when the complainant

is represented by an Advocate, it would become

adversally inferred that the Advocate is representing the

matter and therefore it should not be considered as

absence of complainant. As a matter of course, some

times, when the Advocate finds that the accused is not

present in the Court and when the accused is also

represented by an Advocate, who moves an exemption

application from the side of the accused; then a general

perception is that on that ground itself, the matter would

get adjourned.

4. The learned trial Court Judge should have

adopted the directions, which were given in the case of

Indian Bank Association Vs. Union of India, reported

R/CR.A/1175/2022 JUDGMENT DATED: 20/12/2022

in (2014) 5 SCC 519; for matters filed under section 138

of the N.I. Act, the Hon'ble Apex Court has given

directions, which are as under:

"(1) The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the NI Act is presented, shall scrutinise the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.

             (2)     The MM/JM should adopt a pragmatic
             and     realistic   approach          while      issuing
             summons.      Summons          must      be     properly

addressed and sent by post as well as by e- mail address got from the complainant. The Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved, immediate follow-up action be taken.

             (3)     The   court     may         indicate     in     the
             summon that if the accused makes an





   R/CR.A/1175/2022                                      JUDGMENT DATED: 20/12/2022

application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest.

(4) The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 CrPC to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) of the NI Act for recalling a witness for cross- examination.

(5) The court concerned must ensure that examination-in-chief, cross- examination and re-examination of the complainant must be conducted within three months of assigning the case. The court has option of accepting affidavits of the witnesses instead of examining them in court. The witnesses to the complaint and the accused must be available for cross- examination as and when there is direction to this effect by the Court."

4.1 According to the directions, as held in Indian

R/CR.A/1175/2022 JUDGMENT DATED: 20/12/2022

Bank Association (supra), after the issuance of summons,

the Judicial Magistrate is required to adopt the pragmatic

approach and may pass an appropriate order at the

earliest by indicating in the summons, if accused make an

application for compounding of offence at the first

hearing of the case, the Court may pass appropriate

orders at the earliest, the Courts shall direct the accused

to ensure his appearance during the trial and take notice

under section 251 of Cr.P.C. to enable him to enter his

plea of defence and fix case for defence evidence, unless

the application is made by the accused under section

145(2) of the N.I. Act for recalling witness for cross-

examination.

5. In Associated Cement Co. Ltd. Vs.

Keshvanand, reported in (1998) 1 SCC 687, the

Hon'ble Apex Court while referring to the provisions of

section 256 of Cr.P.C. in context of the complaint filed

under section 138 of the N.I. Act, has made observations

as under:

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"15. Section 256 of the Code of Criminal Procedure, 1973( for short 'the new Code') is the corresponding provision to Section 247 of the old Code. The main body of both provisions is identically worded, but there is a slight difference between the provisos under the two sections. The proviso to section 256 of the new code is reproduced here:

"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."

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 complaint. An accused who is per force to attend the

R/CR.A/1175/2022 JUDGMENT DATED: 20/12/2022

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 a protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, court has a duty to acquit the accused in invitum.

17. Reading the Section in its entirety would reveal that two constraints are imposed on the court for exercising the power under the Section. First is, if the court thinks that in a situation it is proper to adjourn the hearing then the magistrate shall not acquit the accused. Second is, when the magistrate considers that personal attendance of the complainant is not necessary on that day the magistrate has the power to dispense with his attendance and proceed with the case.

When the court notices that the complainant is absent on a particular day the court must consider whether personal attendance of the complainant is essential on that day for progress of the case and also whether the situation does not justify

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the case being adjoined to another date due to any other reason. If the situation does not justify the case being adjourned the court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice."

5.1 This Court in case of State v. Keshavram,

reported in 1977 GLR 524, held as under:

"The power under Sec. 256 of the Criminal Procedure Code has been conferred on the Magistrate obviously for the ends of justice and with a view to see that an accused person is not subjected to any undue harassment. The proviso to Sec.

256 further lays down 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

R/CR.A/1175/2022 JUDGMENT DATED: 20/12/2022

Magistrate may dispense with his attendance and proceed with the case. In the instant case, the situation on the day in question squarely fall within the proviso and still the learned Magistrate has acted under the main part of this section. This is really unfortunate and it is hoped that repetition of such instances would not be there in future in the Court of the Magistrate."

5.2 Similarly, in the the case of Sureshchandra

Chandulal Patni V. Natwarlal Keshavlal Patni,

reported in 1992 (1) GLR 626, this Court held that:

"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

R/CR.A/1175/2022 JUDGMENT DATED: 20/12/2022

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 March 5, 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 the proviso to Sec. 256 of the Code of Criminal Procedure."

6. Thus, in view of the reasons given above, the

appeal is allowed. The judgment and order dated

R/CR.A/1175/2022 JUDGMENT DATED: 20/12/2022

21.01.2021 passed in Criminal Case No.5855 of 2015 by

the 4th Additional Judicial Magistrate, First Class,

Himmatnagar, is quashed and set aside. The Criminal

Appeal No.5855 of 2015 is ordered to be restored in its

original status on the file of the concerned Court and the

concerned court is hereby directed to proceed with the

matter from the stage of cross-examination. Record &

Proceedings, if received, be sent back to the concerned

Court.

(GITA GOPI,J) Pankaj