Gujarat High Court

Ankur Arunkumar Pawale vs State Of Gujarat on 12 December, 2022

Bench: Gita Gopi

     R/CR.A/305/2016                                JUDGMENT DATED: 12/12/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 305 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 : 12/12/2022

                               ORAL JUDGMENT

1. The present appeal under Section 378 of the

Code of Criminal Procedure 1973 is preferred against the

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judgment and order dated 30.12.2013 passed by the

learned Judicial Magistrate, First Class, Vadodara in

Criminal Case No. 5074 of 2009.

2. Heard Mr. Hardik Jani learned advocate for the

appellant. Though served, none appeared 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

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Affidavit of Examination-in-chief was produced on record

and documentary list was also produced on 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-35 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

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stage of evidence of the complainant and ought to have

posted it for the stage of defence, which could have given

a scope for 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

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have considered that the matter was for further cross-

examination and should have considered that there was

no callousness or negligence from the 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

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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 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.

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(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."

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

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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 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

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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 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

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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."

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.