Manish Jagmohan Jariwala vs State Of Gujarat
2022 Latest Caselaw 9344 Guj

     R/CR.A/1642/2021                                      ORDER DATED: 20/10/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1642 of 2021

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                           MANISH JAGMOHAN JARIWALA
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR. HJ KARATHIYA(7012) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
MR.KIRIT R CHAUDHARI(3745) for the Opponent(s)/Respondent(s) No. 2
MS MONALI BHATT, APP for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                                 Date : 20/10/2022

                                  ORAL ORDER

1. This appeal is filed by the appellant under the provisions of Section 378 of the Criminal Procedure Code, 1973 (CrPC) against the judgment and order dated 29.09.2021 passed by the 19th Additional Chief Judicial Magistrate, Surat in Criminal Case No. 47662 of 2018, whereby, the same was dismissed for default, for want of non prosecution.

2. Facts in brief are that the appellant - original complainant filed the aforesaid criminal case under the provisions of the Negotiable Instruments Act, 1881 (NI Act) against the respondent No. 2 herein - original accused before the learned Court below, which came to be dismissed invoking the provisions of Section 256 of the Code as the complainant could not remain present before the trial Court on the date so fixed.

R/CR.A/1642/2021 ORDER DATED: 20/10/2022

3. Heard learned advocate Mr. H.J. Karathiya for the appellant, learned Additional Public Prosecutor for the respondent No. 1 - State and learned advocate Mr. Kirit Chaudhary for the respondent No.2 - original accused.

3.1 The learned advocate for the appellant submitted that due to recent Covid-19 Pandemic, the appellant herein could not remain present on certain occasion and even otherwise, the case was pending for recording place of the accused person. It is further submitted that the Court below vide impugned judgment and order dated 29.09.2021 dismissed the complaint of the appellant herein for want of prosecution. It is further submitted that the appellant will not take any unnecessary adjournments in the proceedings before the trial Court. Accordingly, he requested to quash and set aside the impugned order and to restore the case and to hear the same on merits by the learned trial Court concerned.

4. The Court has also heard the learned Additional Public Prosecutor for the respondent- State and learned advocate for respondent No.2.

5. Having heard the arguments advanced and considering the facts and circumstances of the case on hand and also perusing the impugned order dated 29.09.2021 passed by the learned Magistrate, it appears that the matter in question was listed before the Court on the appointed date, wherein, since neither the appellant nor the advocate representing the appellant, could remain present, the same came to be

R/CR.A/1642/2021 ORDER DATED: 20/10/2022

dismissed for default, for want of non-prosecution under the provisions of Section 256 of the Code.

6. Thus, in the overall facts and circumstances of the case, in the considered opinion of this Court, the trial Court has taken a very hyper-technical view of the matter and dismissed the complaint, more particularly when nobody was present on behalf of the accused also, which is evident from the rojkam itself. Accordingly, the present appeal deserves to be allowed by setting aside the impugned order. However, considering the fact that no steps appear to have been taken for service to the respondent No. 2 - accused by the complainant, the Court deems it proper to allow this appeal with some exemplary cost.

7. For the forgoing reasons, the present appeal succeeds and is accordingly, allowed. The judgment and order dated 29.09.2021 passed by the 19 th Additional Chief Judicial Magistrate, Surat in Criminal Case No. 47662 of 2018, is hereby quashed and set aside. The case is directed to be restored to its original file and stage, and the trial Court concerned shall deal with and decide the criminal case in question in accordance with law, on merits and without being influenced by any orders.

8. Nonetheless, a cost of Rs.5,000/- (Rupees Five thousand only) is imposed upon the appellant - original complainant, which shall be deposited within a period of two weeks before the concerned District/Taluka Legal Services Authority.

R/CR.A/1642/2021 ORDER DATED: 20/10/2022

9. R&P, if received, be transmitted back to the learned trial Court concerned forthwith.

Direct service is permitted.

(A. C. JOSHI,J) SALIM/72