Ankur Arunkumar Pawale vs State Of Gujarat
2022 Latest Caselaw 9829 Guj

      R/CR.A/306/2016                                JUDGMENT DATED: 07/12/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 306 of 2016


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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                          ANKUR ARUNKUMAR PAWALE
                                    Versus
                          STATE OF GUJARAT & 2 other(s)
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Appearance:
(MR AY KOGJE)(1101) for the Appellant(s) No. 1
MR. HARDIK J JANI(6497) for the Appellant(s) No. 1
MR.HARDIK MEHTA APP for the Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2,3
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    CORAM:HONOURABLE MS. JUSTICE GITA GOPI

                                 Date : 07/12/2022

                                ORAL JUDGMENT

[1] The present appeal under Section 378 of

the Code of Criminal Procedure 1973 is preferred

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against the judgment and order dated 30.12.2023

passed by the learned Judicial Magistrate, First

Class, Vadodara in Criminal Case No. 5071 of 2009.

[2] Heard Mr. Hardik Jani learned advocate for

the appellant. Though served, none appear for

respondent Nos 2 & 3.

[3] Mr.Jani learned advocate submits that the

learned trial Court Judge has dismissed the criminal

complaint for default filed under Section 138 of the

N.I.Act and acquitted the accused, observing that

neither the appellant nor his Advocate had remained

present on that day nor on the earlier dates and in

the interest of justice, matter was adjourned and on

the day of dismissal, no application was moved for

adjournment; thus, on the ground of default of the

complainant, matter stood dismissed.

3.1 Mr.Jani submits that as per the Rojnama,

the Affidavit of Examination-in-chief was produced on

record and documentary list was also produced on

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10.03.2011 with a prayer to Exhibit the documents

vide Exhibits-12, 13 & 14 respectively. After hearing

the parties, the relevant documents were exhibited

and the matter was kept for cross-examination of the

complainant. Mr. Jani submits that the proceedings

suggest that, neither from the side of the

complainant or of the accused, adjournment

applications were given, and then on 22.02.2013, the

cross-examination begun in Criminal Case No.4707 of

2009, and for further cross-examination the matter

was adjourned for a long period, as the Court was

on leave.

3.2 Mr.Jani further submitted that Exhibit-37

was a pursis by the accused praying for closing of

the evidence of the complainant, but the learned trial

Court Judge posted the matter for further cross-

examination. Mr.Jani submitted that the learned trial

Court Judge instead of dismissing the matter for

default should have closed the stage of evidence of

the complainant and ought to have posted it for the

stage of defence, which could have given a scope for

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the complainant to get his right reopen, instead of

that, the learned trial Court Judge went on to

dismiss the matter.

3.3 Mr.Jani placed reliance on the judgments of Associated Cement Co. Ltd. Vs. Keshvanand reported in

(1998) 1 SCC 687 and Ratanlal Gulabchand Gupta Vs.

Shara Sev Gruh Udyog Bhandar & Ors. Reported in

(2001) 4 GLR, 2987, to submit that the Magistrate is

not justified in acquitting the accused, unless the

presence of the complainant on that day found

necessary. Mr.Jani submitted that since the

complainant was represented by Advocate on record,

the learned trial Court Judge should have proceeded

with the matter. He submits that the matter could

not be dismissed even on the absence of Advocate

engaged on record, as the complainant should not be

penalized for the negligence of the Advocate. Mr.

Jani submitted that the learned trial Court Judge

ought to have considered that the matter was for

further cross-examination and should have considered

that there was no callousness or negligence from the

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side of the complainant, and if at all, the learned

trial Court Judge on the very day of dismissal, found

the presence of the complainant necessary, then

necessary direction ought to have been passed.

4. The case of Indian Bank Association Vs.

Union of India, reported in (2014) 5 SCC 519; was

filed under section 138 of the N.I. Act, where 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

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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

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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."

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:

"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





 R/CR.A/306/2016                                   JUDGMENT DATED: 07/12/2022

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.

17. Reading the Section in its entirety

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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 and fairly without impairing the cause of administration of

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criminal justice."

[6] Record and proceedings suggest that the

matter was already on the stage of cross-examination

of the complainant; necessary Affidavit was produced

on record; the documents were exhibited and part of

the cross-examination was taken. The learned trial

Court Judge rather dismissing the matter by invoking the provisions under Section 256 of the

Criminal Procedure Code could have closed the stage

for further cross-examination and posted the matter

for recording the evidence of witnesses of the

complainant. The impugned order passed by the trial

Court Judge is bad in law and it is materially

defective.

[7] Considering the above facts and in view of

the reasons given above, the appeal is allowed. The

judgment and order dated 30.12.2023 passed by the

learned Judicial Magistrate, First Class, Vadodara in

Criminal Case No. 5071 of 2009 is quashed and set

aside. The Criminal Case No.5071 of 2009 is ordered

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to be restored in its original status on the file of the

concerned Court at the stage of cross-examination of

the complainant and the concerned Court is hereby

directed to decide the case on merits in accordance

with law. It is also directed to the accused to

remain present before the trial Court, failing which,

the judgment be declared in his absence. Record and

Proceedings, if any, be sent back to the concerned

Court.

(GITA GOPI,J) Manoj