Shreeji Enterprise Thro Amitbhai ... vs State Of Gujarat
2022 Latest Caselaw 8125 Guj

     R/CR.A/316/2022                               JUDGMENT DATED: 19/09/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 316 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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1     Whether Reporters of Local Papers may be allowed                  No
      to see the judgment ?

2     To be referred to the Reporter or not ?                           No

3     Whether their Lordships wish to see the fair copy                 No
      of the judgment ?

4     Whether this case involves a substantial question                 No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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          SHREEJI ENTERPRISE THRO AMITBHAI NIRUBHAI SHAH
                              Versus
                        STATE OF GUJARAT
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Appearance:
MR VISHVAJITSINH D CHAUHAN(10160) for the Appellant(s) No. 1
MR. VIRAL VYAS WITH MR.KISHAN PRAJAPATI(7074) for the Appellant(s)
No. 1
MR.DIPAK B PATEL(3744) for the Opponent(s)/Respondent(s) No. 2
MS. JIRGA JHAVERI, APP for the Opponent(s)/Respondent(s) No. 1
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    CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI

                               Date : 19/09/2022
                               ORAL JUDGMENT

1. The appellant has filed this criminal appeal under the provisions of Section 378 of the Criminal Procedure Code,1973 (the Code) against the orders dated 11.12.2021 passed by the learned Judicial Magistrate First Class, Modasa in Criminal Case

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No. 125 of 2017 whereby, the same was dismissed for default, for want of non prosecution on behalf of the complainant and the accused is acquitted.

2. Heard learned advocate Mr. Viral Vyas with learned advocate Mr. Kishan Prajapati for the appellant, learned APP Ms. Jirga Zaveri for the respondent No.1 and learned advocate Mr. Dipak B. Patel for the respondent No.2.

3. Brief facts of the case on hand are that the appellant is the resident of Modasa and doing business in name and style of Shreeji Enterprise and as respondent No.2 is resident of Modasa and running Laxmi Guest House and he is known to the appellant and having good friendship with him. That, in the year 2016, the respondent No.2 herein came to the shop of appellant and asked for Rs.10 lakh for development of his business and therefore, appellant gave Rs.10 lakh to the respondent No.2 on six months credit and when the appellant demanded his money back, the respondent No. 2 had issued cheque of Rs.10 lakh of Union Bank of India, Modasa bearing number 010844 dated 14.01.2017, in favour of appellant. That, the on presentation of the cheque, the same had been returned with endorsement of "Opening Balance Insufficient" on 16.01.2017 and therefore, the appellant herein had sent statutory notice though his advocate to the respondent No.2 at his residence as well as at his business place, but he denied to accept the notice and at his business place it was not served as he was not available and therefore, through courier, notice had been served upon the respondent No.2 on 21.01.2017. That, since the accused - respondent No.2 did not pay the

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cheque amount within time limitation, the appellant herein, has filed a private complaint under Section 138 of the Negotiable Instruments Act, 1881 before the Judicial Magistrate First Class, Modasa against the respondent No.2- accused and the same has been registered as Criminal Case No.125 of 2017. That, the summons was issued to the respondent No.2 but initially he did not appear and thereafter, warrant came to be issued and the respondent No.2 appeared through his advocate and thereafter, the chief of the appellant came to be recorded and he has been cross examined by the accused and thereafter, the document list was produced and that was objected by the respondent No.2 and the respondent No.2 has started to remain absent and therefore, upon application again warrant came to be issued and thereafter as there is rises in Covid-19 cases and as everything was closed and therefore, the appellant could not remain present in trial on some occasion and as the appellant was in impression that the courts are still not started and even his advocate has also not informed to him nor he remained present before the learned Court below and therefore, the learned Court below passed an order dated 11.12.2021, whereby the learned Court below has dismissed the Criminal Case for want of prosecution under Section 256 of the Criminal Procedure Code for non appearance of the complainant and thereby has acquitted the respondent No.2- accused from the charge of Section 138 of the Negotiable Instruments Act.

4. Learned advocate for the appellant submitted that the impugned order dismissing the case and thereby, acquitting

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the accused is bad, unjust, improper, under misconception of law and facts, against the evidence available on record and contrary to the settled legal position of law. He also submitted that impugned order is manifestly erroneous and demonstrably unsustainable.

4.1 The learned advocate for the appellant submitted that learned trial Court has committed serious error by overlooking the aspects of presumption under the Negotiable Instruments Act. He also submitted that the learned trial court has to observe that when the courts were closed for some time because of rises in Covid-19 cases and entries of litigants were restricted in the Court and as advocate for the appellant has not kept them informed about the status of the matter and thereby the appellant could not remain present before the court on some occasions and thereby the complaint came to be dismissed and therefore, interference of this Court is required. He further submitted that the Court below has committed serious error by not appreciating vital aspect that everything is produced on record including evidence was available on before the trial Court but the same is not considered by the trial Court.

4.2 Learned advocate for the appellant submitted that instead of passing order under Section 256 of the Criminal Procedure Code and learned trial Court has ought to have passed order on merits as held by the Hon'ble Apex Court that each and every matter should be decided on merits and not on such technical ground. He further submitted that the learned trial Court ought to believe that the interpretation of Section

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139 of the Negotiable Instruments Act and the presumption should be drawn in favour of the complainant and rebuttal and the burden of proof and the evidence of rebutment should lies upon the accused instead of complainant but the learned trial Court failed to believe the same. Accordingly, he requested to quash and set aside the impugned order and to restore the matter to decide afresh by the learned trial Court concerned.

5. Learned Additional Public Prosecutor Ms. Jirga Zaveri for the respondent - State submits to pass an appropriate order. Learned advocate Mr. Dipak Patel for the respondent No.2 has taken objection that since last one year the complainant has not remained present before the trial Court and therefore, this appeal may be dismissed

6. Having heard the arguments advanced and considering the facts and circumstances of the case on hand and also perusing the impugned orders dated 11.12.2021 passed by the learned Judicial Magistrate First Class, Modasa in Criminal Case No. 125 of 2017 it appears that the on some occasions, the appellant nor the advocate representing the appellant, could remain present, the same came to be dismissed for default, for want of prosecution. It is a settled principle of law that a party should not remained unheard. It is also settled principle of law that adjudication should be on merits rather than on mere technicalities.

6.1 In this regard, it would be worthwhile to refer to a decision of the Co-ordinate Bench of this Court in the case of Harisinh Bhagwatsinh Sarvaiya v. State of Gujarat and

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Ors., Manu/GJ/1042/2013, wherein, it is some important paras read as under:

"10. In the above factual background, reference may be made to the provisions of Sec. 256 of the Code, which are reproduced herein below:

Sec. 256. Non-appearance or death of complainant:- (1) If the summons has been issued on complaint, and on the day appointed for the appearance of the accused, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall, notwithstanding anything herein above contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

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.

(2) The provisions of sub-sec. (1) shall, so far as may be, apply also to cases where the non- appearance of the complainant is due to his death.

(Emphasis supplied)

11. Though, it is not disputed that the power to dismiss a complaint for non-appearance of the complainant has been conferred by Sec. 256 of the Code, at the same time, this provision of law also confers discretion upon the learned Magistrate to adjourn the hearing of the case to some other day, if he thinks it proper to do so. The approach to be adopted by the Court in each situation would depend on the facts and circumstances of the case. However, it would be a prudent exercise of power if a balance is maintained, weighing the facts against the interest of justice.

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12. In this context, it would be appropriate to refer to the decision in State of Gujarat v. Keshavram Shivram Devmurari, 1977 GLR 524, wherein this Court has held as below:

5. Under Sec. 256 of the Code, the Magistrate has no doubt, power to acquit the accused if the complainant does not appear on the day appointed for the appearance of the accused or any day subsequent thereto. This power has been conferred on the Magistrate obviously for the ends of justice and with a view to see that an accused person is not subjected to any undue harassment. By way of abundant caution, the very Section further provides that it is not obligatory on the part of the Magistrate to dismiss the complaint and he has been clothed with the power to adjourn the hearing of the case to some other day. The proviso annexed to this Section further makes the position crystal clear. It lays down that where the complainant is represented by a pleader 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. The situation as was before the learned Magistrate on the day in question squarely fall within the proviso and still the learned Magistrate has acted under the main part of this Section. This is really unfortunate and it is hoped that repetition of such instances would not be there in future in the Court of this learned Magistrate or in the Court of any other Magistrate. A copy of this judgment is directed to be circulated to all the Magistrates in the State.

(Emphasis supplied)

13. Further, in Ratanlal Gulabchand Gupta v. Sahara Sev Gruh Udyog Bhandar (supra), this Court has held as below:

3......In our this adversary system in the country, there is nothing wrong of dependent

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of a litigant who have chosen to engage an Advocate in the matter on him. In the case of this nature, on every date is fixed or the proceedings are taken up, the complainant's presence is not necessary, and more so, where he has engaged an Advocate. It is unfortunate that the Advocate was not sufficiently vigilant in conducting the matter. But for this act of the Advocate, why the poor complainant should suffer. On 24-10-1996, the petitioner was present in the Court and 24-12-1996 was the next date fixed therein. On that date the matter was not on the Board. The best course available in these facts to the petitioner was to contact his Advocate, and I do not find any perversity in the approach of the litigant to act in accordance with the advice of the Counsel. I fail to see why the case of the petitioner has not been accepted by both the Courts below. A complainant, in his absence, may face consequences of the dismissal of the complainant as well as discharge of the accused. How absence of the complainant in the criminal case is beneficial to him; The absence of the complainant in the matter results in dismissal of his complaint, he has to take all the precautions and in this case petitioner did and he engaged an Advocate. On 24-12-1996 the next date was not fixed in case could not be known by the petitioner and I do not find any abnormality in the approach of the petitioner to rely upon the advice of his Advocate. The Advocate has told him to inform him the next date fixed in the matter. It is a different matter that the Advocate has not informed the petitioner the next date fixed in the matter. Though Advocate is supposed to take all the care in the matter of his client, but for his action, omission or lapse, ultimately the poor litigant has to pay heavily. It is not the case of the respondents that the complainant petitioner has not engaged an Advocate in this case. He had engaged the Advocate to avoid any adverse order in the complaint for his absence and to defend his case. It is unfortunate that the Advocate did not remain present and for this act, he has paid heavily. By keeping himself absent in the

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proceedings the complainant is not benefited. The trial Court as well as the Revisional Court has not considered this aspect of the matter. They proceeded with totally a technical approach despite the fact that in series of decisions of this Court their approach is not appreciated. Even for the time-being it is accepted that the complainant was not present, how far it is justified on the part of the trial Court to dismiss the complaint where he engaged an Advocate to represent him. It is the case where trial Court has punished the petitioner for the inaction or omission of the Advocate. The learned Court below should not have given any premium to the accused for his benefit on the ground of the absence of the Advocate. In the facts of this case, the orders passed by both the Courts below cannot be allowed to stand. A time comes where the trial Court as well as the Sessions Court have to look into the matter with justice-oriented approach........

... ... ... ...

In such matters, the approach of the Courts should have been pragmatic and not pedantic. If the matters are decided by use of the power to dismiss the matter for default, it does not give a good name to the institution. Where the litigants approach the Court for redressal of grievances, the cases are to be decided on merits with a judicial approach rather than the Courts exercising power to dismiss the matter for default.

(Emphasis supplied)

14. In Mohd. Azeem v. A. Venkatesh, reported in MANU/SC/1012/2002 : 2002 (7) SCC 726, the Supreme Court has held as below:

3. From the contents of the impugned order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. The learned Judge of the High Court

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observes that even on earlier dates in the course of trial, the complainant failed to examine the witnesses. But that could not be a ground to dismiss his complaint for his appearance (sic. absence) on one single day. The cause shown by the complainant of his absence that he had wrongly noted the date, has not been disbelieved. It should have been held to be a valid ground for restoration of the complaint.

4. In our opinion, the learned Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant.

(Emphasis supplied)

6.2 Moreover, in the decision in Manojbhai Jasmatbhai Ramoliya v. State of Gujarat and Ors., MANU/GJ/0217 /2020, it is observed as under:

9. This Court has come across the judgment of the Apex Court reported in MANU/SC/0894/1998 : AIR 1998 SC 596 dealing in case of Associated Cement Co. Ltd. Vs. Keshavanand wherein scope and purpose of insertion of Section 256 in the Code is discussed, which reads as under:

"17. What was the purpose of including a provision like S. 247 in the Code (or S. 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 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

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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.

18. 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 the progress of the case and also whether the situation does not justify the case being adjourned 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 steps of axing down the complainant 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 criminal justice."

7. 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 case. Accordingly, these appeal deserves to be allowed by setting aside the impugned order and restore the case. This Court deems it proper to allow this appeal with some exemplary costs.

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8. For the forgoing reasons, the present appeal succeeds and is allowed in part. The impugned order dated 11.12.2021 passed by the learned Judicial Magistrate First Class, Modasa in Criminal Case No. 125 of 2017 is set aside. The case is directed to be restored to its original file for deciding the same afresh by the concerned Court below, after giving due opportunities to both the sides, in accordance with law, on merits and without being influenced by any orders.

8.1 Nonetheless, a cost of Rs.1,000/- (Rupees One thousand only) is imposed upon the appellant - original complainant, which shall be deposited within a period of two weeks before the District Legal Services Authority of the concerned district.

8.2 Considering the age of the matter, the trial Court concerned is directed to decide the case as expeditiously as possible but not later than six months from the date of receipt of copy of this judgment and order. The parties are also directed to extend full co-operation and shall not seek unnecessary adjournments.

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

(A. C. JOSHI,J) prk