Vijay Credit And Supply Co. Op. ... vs State Of Gujarat
2022 Latest Caselaw 9732 Guj

     R/CR.A/2270/2022                                JUDGMENT DATED: 01/12/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 2270 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE GITA GOPI

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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VIJAY CREDIT AND SUPPLY CO. OP. SOCIETY LTD. THRO USMANGANI
                    GULAMRASUL SHAIKH
                           Versus
                     STATE OF GUJARAT
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Appearance:
MR UMARFARUK M KHARADI(8155) 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
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 01/12/2022

                                 ORAL JUDGMENT

1. Leave to appeal was granted on 24.11.2022.

Mr. Kharadi, learned advocate for the

R/CR.A/2270/2022 JUDGMENT DATED: 01/12/2022

appellant contends that the impugned order

dated 26.6.2022 passed by the learned JMFC,

Dholka stopping the proceedings against the

accused under Section 256 of the Code of

Criminal Procedure, 1973 (for short

'Cr.P.C.') is itself bad in law as the

proceedings cannot be stopped under Section

256 of the Cr.P.C. Mr. Kharadi submits that

Section 256 can be invoked only on non-

appearance or death of the complainant. While

the learned Judge, by not finding the

presence of the accused and observing that

the police machinery has failed to make

available the accused before the Court,

considered that no more time is required to

be granted to the police machinery for

process to the accused and on that count, by

citing the provision of Section 256, stopped

the proceedings. Mr. Kharadi, thus, submits

that it is a case of remitting back the case

R/CR.A/2270/2022 JUDGMENT DATED: 01/12/2022

to the concerned JMFC.

2. Criminal Case no.2542 of 2001 was instituted

under Section 138 of the Negotiable

Instruments Act, 1881. The verification on

the complaint was noted by the learned Judge

on 28.11.2001 and summons was ordered to be

issued against the accused. The matter was

taken up in special sitting of the Lok Adalat

and the proceedings were stopped under

Section 256 of the Cr.P.C., finding, that

inspite of repeated attempts to serve the

accused, the accused had remained absent and

therefore, the proceedings could not be

proceeded further.

3. The learned Trial Court Judge has wrongly

applied Section 256 of the Cr.P.C. and has

erroneously stopped the proceedings of the

trial. Section 256 would be made applicable

only when the summons has been issued on the

complaint and on the appointed date for the

R/CR.A/2270/2022 JUDGMENT DATED: 01/12/2022

appearance of the accused or any day

subsequent thereto to which the hearing may

be adjourned, the complainant does not

appear, then, the Magistrate, despite

anything as provided in the Cr.P.C., would

acquit the accused unless for some reason, a

Magistrate thinks proper to adjourn the

hearing of the case to some other date.

Cr.P.C. further clarifies that if the

complainant is represented by a pleader or by

the officer conducting the prosecution or

where the Magistrate is of the opinion that

the personal attendant of the complainant is

not necessary, the Magistrate may dispense

with the attendance and proceed with the

case. Here in this case, the complainant was

represented by a lawyer. There is no

observation of the learned Trial Judge while

stopping the proceedings that there was any

R/CR.A/2270/2022 JUDGMENT DATED: 01/12/2022

negligence or inaction on the part of the

complainant or his lawyer. The process of

summons was ordered against the accused. The

affirmation shows that the mandatory legal

notice under Section 138 of the Negotiable

Instruments Act, 1881 was served to the

accused and thus, unless otherwise is shown,

it can be assumed that the accused is

deliberately avoiding the service of the

process of the Court, hence accordingly, the

order of the concerned Judge of stopping the

proceedings is illegal, bad in law and hence,

required to be quashed and set aside.

4. The learned Judge ought to have considered

the provision of Section 64 of the Cr.P.C. in

connection with Section 62 of the Cr.P.C. and

the police could have ensured that the

summons be served on the adult male member

residing with the accused and in case, where

the summons could not be effected by the

R/CR.A/2270/2022 JUDGMENT DATED: 01/12/2022

provisions of Sections 62 and 64 Cr.P.C., the

serving officer could affix one of the

duplicate summons to some conspicuous part of

the house or street in which the person

summoned ordinarily resides and thereupon,

the Court, after making such inquiry as it

thinks fit, may either declare that the

summons has been duly served or order fresh

rule in such matter as it considers proper.

Even after the service of summons, the

accused fails to appear, then, the Magistrate

could have adopted the procedure of arrest

warrant under Sections 70 and 71 read with

Section 72 by following the provision of

Sections 73 and 74 of the Cr.P.C.

5. The learned Judge is empowered to undertake

the proceedings as herein mentioned granted

under the Cr.P.C. rather than ordering the

stopping of the proceedings. It has been

rightly stated by Advocate Mr. Kharadi that

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if without exhausting the proceedings under

the provisions of the Cr.P.C., if in such

manner the proceedings are stopped, then,

none of the complaints would see the light of

the day if the learned Magistrate would

exercise such powers and stops the

proceedings at the very initial stage, rather

than appreciating the system which is for

adopting the process and proceedings for

ensuring that justice prevail. The impugned

order does reflect that the learned Judge, in

fact, by stopping the proceedings and without

even exhausting the procedures laid down in

the Cr.P.C. to bring the culprit before the

Court of law, has caused great injustice to

the complainant who had with such great hopes

knocked the doors of justice for addressing

his grievance.

6. The learned Trial Court Judge has

mechanically stopped the proceedings and

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disposed of the matter as by invoking Section

256 of the Cr.P.C. which suggests that the

accused would stand acquitted when the matter

gets dismissed under the provisions of

Section 256 of the Cr.P.C. and once such an

order follows, then, the only remedy which

would be available to the complainant would

be to file an appeal against the order of

acquittal under Section 378(4) of the Cr.P.C.

7. The learned Trial Court Judge has also failed

to observe in his order whether he has made

any orders for directing the police to serve

the process of summons under Section 64 or 65

of the Cr.P.C. and the order suggests that

the learned Trial Court Judge has not even

initiated any process for issuance of warrant

against the accused and had simply, without

any reason, stopped the proceedings. The

impugned order dated 26.6.2022 passed by the

learned JMFC, Dholka in Criminal Case no.2542

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of 2001 is absolutely bad in law and hence,

is hereby quashed and set aside.

8. Thus, Criminal Case no.2542 of 2001 is

ordered to be restored on the file of

concerned Magistrate with a direction to

process as per the procedure of law and to

dispose of the case on merits. Accordingly,

the present appeal is allowed in the above

terms.

(GITA GOPI,J) Maulik