Gujarat High Court

Mamta Dilipbhai Rana vs State Of Gujarat on 23 December, 2022

Bench: Gita Gopi

     R/CR.A/2125/2022                                       ORDER DATED: 23/12/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 2125 of 2022

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                              MAMTA DILIPBHAI RANA
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR POOJAN V BAHRANI(12056) for the Appellant(s) No. 1
MR VEDANT D GAIKWAD(10444) for the Appellant(s) No. 1
MR HARDIK MEHTA, APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED THRU CONCERNED POLICE STN for the
Opponent(s)/Respondent(s) No. 2
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 CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                  Date : 23/12/2022

                                   ORAL ORDER

1. Mr. Vedant Gaikwad, learned advocate for

the appellant states that the appellant-

original complainant of Criminal Case

no.1564 of 2019 has challenged the

judgment and order dated 27.6.2022 passed

by the learned JMFC, Vadodara while

dismissing the complaint under Section

256 of the Code of Criminal Procedure,

1973 and acquitting the accused. Mr.

R/CR.A/2125/2022 ORDER DATED: 23/12/2022

Gaikwad submits that the impugned order

is bad in law and is against the

directions of the Hon'ble Supreme Court

passed in the case of Indian Bank

Association Vs. Union of India, reported

in (2014) 5 SCC 590 and further referring

to an order below Exh.30, Mr. Gaikwad

submits that the learned Trial Court

Judge should not have passed any order

under Section 256 of the Cr.P.C. since

the complainant was represented by an

advocate on record. Mr. Gaikwad submits

that the matter was lastly listed on

26.5.2022 when the appellant and his

advocate were present before the Court

and an application was given for closing

the right of the accused for cross-

examination as accused was not present

before the Court at the given time. Mr.

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Gaikwad submits that thereafter, the

respondent no.2 appeared before the Court

along with his advocate at 01:30 p.m. and

thereafter, the learned Trial Court

Judge, by an order, directed both the

parties to remain present on 27.5.2022 at

03:00 p.m. for conducting the matter. Mr.

Gaikwad submits that on 27.5.2022, the

present appellant could not remain

present, but a report was moved by the

advocate showing the cause of non-

appearance before the Court and the said

reason, according to Mr. Gaikwad, is

reflected in the order of the learned

Trial Court Judge. Inspite of that, the

learned Judge came to the conclusion that

the appellant was negligent in conducting

the case. He further states that as per

the Rojnama, the examination-in-chief was

R/CR.A/2125/2022 ORDER DATED: 23/12/2022

produced at Exh.4, list of documents vide

Exh.3 and an application under Section

143A of the N.I. Act was moved for

directing the accused to pay the interim

compensation and it was kept for hearing

and on 19.10.2019, after hearing, the

said application was reserved for orders

and on 19.10.2019 as per the Rojnama, the

order was passed. Mr. Gaikwad submits

that the matter was adjourned owing to

the Office Order of the District Court on

account of pandemic Corona virus Covid-19

and then, on 8.2.2020, non-bailable

warrant was issued against the accused

and the proceedings from time to time

continued on serving of non-bailable

warrant to the accused. On 24.9.2021, the

application to cancel the warrant was

moved and vide Exh.21, the permanent

R/CR.A/2125/2022 ORDER DATED: 23/12/2022

exemption application was moved by the

accused. Mr. Gaikwad states that on

27.9.2021, the documents were ordered to

be exhibited from Exhs.22 to 25 and the

matter was posted for cross-examination

and for the execution of order below

Exh.12. Mr. Gaikwad submits that the

order below Exh.12 was not implemented by

the accused and vide Exh.30, the

complainant has moved the Court to close

the right of the accused of cross-

examination, but the learned Judge

directed both the parties to proceed with

the matter on 27.5.2022 at 15:00 hrs.

with a further direction that in failure

of any party/advocate remaining absent,

appropriate order would be passed. Mr.

Gaikwad submits that the impugned order

reflects that the advocate of the

R/CR.A/2125/2022 ORDER DATED: 23/12/2022

complainant had moved the Court for an

adjournment informing the Court that the

complainant was on a religious procession

and on that ground, asked for

adjournment.

2. The record and proceedings, as submitted,

shows that the matter was for the

implementation of an order below Exh.12

which was passed under Section 143A of

the N.I. Act. The accused was to pay the

money as per the order. The complainant

had moved Exh.30 requesting the Court to

close the stage of cross-examination of

the accused. The learned Judge, while

passing the order on 26.5.2022 below

Exh.30, had observed that the complainant

and his advocate were present in the

morning and thereafter, at 13:30 hrs.,

the accused and his counsel remained

R/CR.A/2125/2022 ORDER DATED: 23/12/2022

present, but at that time, the

complainant or his counsel were not

before the Court. Hence, the learned

Judge directed the parties to proceed

with the matter on 27.5.2022. The learned

Judge, on the date of rejecting the

complaint on 27.6.2022, ought to have

referred to the proceedings of the

matter. The case was on execution of the

order below Exh.12. The complainant had

also urged the Court to close the stage

of cross-examination and on the very day

when the matter was dismissed for

default, the applicant's lawyer was

present before the Court.

3. Mr. Gaikwad referring to the judgment of

this Court in the case of Jain Enamel

Works Vs. State of Gujarat, reported in

2018 (0) AIJEL-HC 239029, submits that

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exercise of powers under Section 256 of

the Code of Criminal Procedure, 1973

dismissing the matter for want of

prosecution is considered as travesty of

justice.

4. The learned Trial Court Judge should have

adopted the directions, which were given

in the case of Indian Bank Association

(supra) for matters filed under Section

138 of the N.I. Act, 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

R/CR.A/2125/2022 ORDER DATED: 23/12/2022

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 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

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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."

5. According to the directions, as held in

the case of Indian 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

R/CR.A/2125/2022 ORDER DATED: 23/12/2022

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.

6. 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:-

"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:

R/CR.A/2125/2022 ORDER DATED: 23/12/2022

"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 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.

R/CR.A/2125/2022 ORDER DATED: 23/12/2022

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 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

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and fairly without impairing the cause of administration of criminal justice."

7. 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 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."

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8. 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 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

R/CR.A/2125/2022 ORDER DATED: 23/12/2022

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."

9. Thus, considering the record and

proceedings and the fact that on the date

of dismissal of the complaint as default,

the learned advocate of the complainant

was present before the Court and had

moved Exh.31 asking for an adjournment.

The order on that day dismissing the

complaint for default is bad in law.

Exh.31 was on record asking for

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adjournment and on the date of dismissal

of the complaint, the complainant was