Kalpesh Piyushbhai Shah vs State Of Gujarat
2022 Latest Caselaw 659 Guj

     R/CR.A/1036/2020                                JUDGMENT DATED: 19/01/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1036 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
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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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                            KALPESH PIYUSHBHAI SHAH
                                     Versus
                           STATE OF GUJARAT & 1 other(s)
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Appearance:
MR. JAY M THAKKAR(6677) for the Appellant(s) No. 1
MR SHUSHIL R SHUKLA(5603) for the Opponent(s)/Respondent(s) No. 2
MS MOXA THAKKAR APP (2) for the Opponent(s)/Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN

                                 Date : 19/01/2022

                                 ORAL JUDGMENT

1. Present appeal under section 378(2) of the Code of

Criminal Procedure has been passed by the appellant -

original complainant against the judgement and order

passed by the learned Judicial Magistrate, First Class,

Vadodara in Criminal Case No.35887 of 2017, by which the

R/CR.A/1036/2020 JUDGMENT DATED: 19/01/2022

learned Judge acquitted the respondent No.2 herein -

original accused for the offence under section 138 of

Negotiable Instruments Act.

2. Heard Mr.Jay Thakkar, learned advocate for the

appellant - complainant and Mr.Sushil Shukla, learned

advocate for the respondent accused and Ms.Moxa Thakkar,

learned APP for the State.

3. Mr.Jay Thakkar, learned advocate for the appellant

has vehemently submitted that the trial court has not

decided the case on merits and has dismissed the case and

acquitted the accused on the ground of non-availability of

the complainant. He has further submitted that no

reasonable and sufficient opportunity of being heard has

been given to the complainant.

4. Per contra, Sushil Shukla, learned advocate for the

respondent No.2 - original accused has submitted that

earlier the complainant remained absent for one year and

even after recording his evidence, he remained absent and

R/CR.A/1036/2020 JUDGMENT DATED: 19/01/2022

hence the trial court has rightly dismissed the case and

acquitted the accused.

5. Heard the learned advocates for the respective parties

and perused the judgement and order of acquittal. On

perusal of the impugned judgement, it is clear that the

learned Judge has dismissed the case and acquitted the

accused on the ground of non-availability of the

complainant. On perusal of the rojkam it appears that no

sufficient opportunity has been given to the complainant.

Perusing the record of the case and more particularly the

rojkam, it reveals that the case was filed on 25/10/2017

and the complainant remained present on 14/3/2018,

2/5/2018, 20/6/2018, 27/7/2018,19/9/2018, 2/11/2018,

30/11/2018, 4/1/2019, 5/1/2019, 25/2/2019,

25/4/2019, 7/5/2019 and on 16/5/2019. The cross

examination of the complainant was started and recorded

on 16/5/2019. Thereafter, the case was adjourned for

recording further cross examination of the complainant and

the complainant remained present before the trial court on

22/5/2019, 4/6/2019, 5/7/2019, 29/7/2019, 31/8/2019,

R/CR.A/1036/2020 JUDGMENT DATED: 19/01/2022

25/9/2019, 9/10/2019, 6/11/2019, 4/1/2020 and on

4/1/2020. On 4/1/2020 the case was adjourned on the

ground of settlement. Thereafter on the next date on

6/2/2020, the complainant was not present and hence

right of the complainant of leading evidence was closed and

even the right of leading FS was also closed and the matter

was kept on pronouncement of judgement. Thus, though on

the earlier date the matter was adjourned for settlement and

merely on one occasion, the complainant was not present,

his right of leading evidence has been closed, which cannot

be sustained. Thereafter on the next date i.e. on 20/3/2020

judgement has been pronounced and the accused came to

be acquitted. Thus, from the rojkam it is clear that the

complainant has practically remained present all through

out and merely because he did not appear for once, the trial

court acquitted the accused by dismissing the case. It is

also pertinent to note that though the case was adjourned

number of times for recording further cross examinations of

the complainant, no cross examination of the complainant

was recorded. From the rojkam it is clear that the learned

Judge in haste of disposing the case, has not decided the

R/CR.A/1036/2020 JUDGMENT DATED: 19/01/2022

case. Since the matter is not decided on merits and no

reasonable opportunity of being has been given to the

complainant, I am of the opinion that the matter is required

to be remanded. Hence the following order.

The matter is remanded to the concerned trial court

with a direction to restore the matter to the file of the trial

court and to decide the case on merits, after giving

reasonable and sufficient opportunity to the parties to lead

evidence, preferably within a period of three months from

the date of receipt of this judgement and order.

Parties are directed to co-operate the learned trial

court in early disposal of the case on merits, as aforesaid.

(RAJENDRA M. SAREEN,J) R.H. PARMAR