Gujarat High Court
Rameshbhai Jasubhai Patel vs Dineshbhai Manilal Patel on 7 December, 2023
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R/CR.A/1987/2023 JUDGMENT DATED: 07/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1987 of 2023
With
R/CRIMINAL APPEAL NO. 1988 of 2023
With
R/CRIMINAL APPEAL NO. 1989 of 2023
With
R/CRIMINAL APPEAL NO. 1990 of 2023
With
R/CRIMINAL APPEAL NO. 1991 of 2023
With
R/CRIMINAL APPEAL NO. 1992 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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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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RAMESHBHAI JASUBHAI PATEL
Versus
DINESHBHAI MANILAL PATEL
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Appearance:
MR IQBAL M MALIK(434) for the Appellant(s) No. 1
MR BHAVESH D HAJARE(5515) for the Opponent(s)/Respondent(s) No. 1
MS VRUNDA SHAH, ADDL,PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 2
MS DIVYANGNA JHALA, ADDL.PUBLI PROSECUTOR IN CRIMINAL
APPEAL NOS.1990 AND 1991 OF 2023
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 07/12/2023
COMMON ORAL JUDGMENT
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1. Issue and parties in all the appeals are same therefore,
this Court deems it fit to pass common order.
2. These appeals are filed under Section 378(4) of the Code
of Criminal Procedure, 1973 ('the Cr.P.C.' hereinafter)
challenging the judgment and award passed by the
learned Judicial Magistrate First Class, Galteshwar,
Sevalia Court below Exhibit 1 dated 10.03.2023 in
Criminal Case No.627 of 2014 and other allied Criminal
Cases whereby the respondent-accused was acquitted
from the charges on the ground that complainant failed
to serve the summons to the respondent-accused and
therefore, complaint was dismissed for non-prosecution
under Section 256 of the Cr.P.C.
3. It is the case of the complainant that the complainant
and the respondent-accused was having the business
relations and the respondent-accused wanted to
purchase the tobacco from the complainant therefore
41,898 Kg. tobacco was purchased by the respondent-
accused and therefore, nine different cheques were
issued for the total amount of Rs.21,40,000/- in the name
of the complainant. At that point of time, the assurance
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was given by the respondent-accused that on depositing
the said cheques to the Bank, the amount would be
credited in his account, out of that, two cheques of
Rs.50,000/- each came to be honored and the remaining
cheques were returned with the endorsement of 'in
sufficient fund'. Therefore, after following the procedure
prescribed under the Negotiable Instruments Act, 1886
('the N.I.Act' hereinafter) before the learned Judicial
Magistrate First Class at Thasra being Criminal Case
No.627 of 2014.
3.1. After recording the verification, learned Court had
issued the process to the respondent-accused.
Subsequently, the territorial jurisdiction was found to
have been changed therefore, the criminal cases were
transferred to the learned Court at Galteshwar.
Learned court had passed the impugned judgment and
award dated 10.03.2023 dismissing the complaint for
non-prosecution on the ground that though several
time process was issued, the report was made that the
respondent-accused is not staying at the given
address, and though, sufficient opportunity was given
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to the complainant to get the fresh address, however
complainant remained fail in providing the same,
therefore, the learned Court had dismissed the
complaint on the ground that the complainant remains
fails in serving of notice/warrant to the respondent-
accused, which is impugned before this Court.
4. Heard the learned advocate Mr.Iqbal Malik for the
appellant-complainant, learned advocate Mr.Bhavesh
Hajare for the respondent-accused and learned APPs
Ms.Vrunda Shah and Ms.Divyangna Jhala for respondent-
State.
5. Learned advocate Mr.Iqbal Malik for the complainant
submits that though the application was given for issuing
the warrant and declaring him as a proclaim offender
under Sections 82 and 83 of the Cr.P.C., the learned trial
Court had not considered the same on the ground that
there is no necessity for initiation of the proceedings
under Sections 82 and 83 of the Cr.P.C. Learned advocate
Mr.Malik submits that during the trial all the efforts were
made to get the fresh address however, the complainant
remained fail and the learned trial Court dismissed the
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complaint for default. Learned advocate Mr.Malik submits
that the learned trial Court could have given one
opportunity and could have initiate the proceedings
under Section 82 of the Cr.P.C. and decided the matter on
merits after giving the opportunity to the party to led the
evidence however, learned trial Court remained fail in
doing so. Therefore, learned advocate Mr.Malik prays to
reverse the acquittal, which was declared on technical
ground and to remand the matter back after restoring the
same to its original file for deciding afresh.
6. On the other hand, learned advocate Mr.Jignesh Hajare
for the respondent-accused submits that it is the duty of
the complainant to serve the notice by adopting the
mode provided under the law. Learned advocate
Mr.Hajare further submits that as the complainant
remained fail in following the procedure prescribed under
the law, the learned trial Court had rightly dismissed the
complaint and declared the acquittal of the respondent-
accused. Therefore, learned advocate Mr.Hajare prays
that no interfere is required and appeals are required to
be dismissed.
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7. Considering the arguments advanced by the learned
advocates for the respective parties, before going into
the merits of the case, the provisions under Section 256
of the Cr.P.C. is required to be re-looked, which is
reproduced hereinbelow:
"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
hereinbefore 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- section (1) shall, so far as
may be, apply also to cases where the non- appearance
of the complainant is due to his death."
8. The discretion under Section 256 of the Cr.P.C. has to be
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exercised fairly and judicially without impairing the cause
on administration of criminal justice.
9. From the record and proceeding, which is available with
the Court, it transpires that on the date when the
judgment and order was passed, the application was
given by the learned advocate for the complainant for
issuance of the warrant and initiation of proceedings
under Sections 82 and 83 of the Cr.P.C. It is true that
number of opportunities were given by the learned trial
Court to serve the notice/warrant to the respondent-
accused, but the complainant remains fail in providing
the fresh address, however, at this stage, one fact
requires to be noticed that before this Court in the cause
title of the appeal two address were provided and the
notice, which was served through the concerned police
station and the said notice was received by the family
member of the respondent-accused and in turn the
respondent-accused has been informed and he appeared
in the Court. Therefore, it can be averred from the record
that the respondent-accused was having the knowledge
with regard to the pendency of the proceedings, however
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to evade the service, he did not appear before the Court.
10. From the record, which is available, it is indisputably
that on the day when the judgment and order was
passed, the learned advocate was present. Therefore, the
power, which is exercised under Section 256 for non-
appearance or death of the complainant dismissing the
matter appears to have been wrongly exercised. Though
the complainant was present and filed an application, the
learned trial Court instead of dismissing the complaint
could have given the opportunity to serve or to initiate
the proceedings under the law.
11. In a case under Section 138 of the N.I.Act, it is
always complainant, who is at stake for his money, which
ought to have paid through the cheuqe. Unfortunately,
the cheques in question were dishonored. Under such
circumstances, a complaint should not have been
dismissed immediately and Court ought to have adopted
the course to adjourn the case for hearing to some other
day under the provision of Section 256 of the Cr.P.C.
12. In view of above, this Court is of the view that the
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complaint is required to be restored to its original file.
Due opportunity is required to be given to the parties to
adduce and/or produce their respective evidence before
the concerned Court and the matter is required to be
decided on merits instead of this technical dismissal.
However, this Court cannot shut the eyes on the fact that
the matter is pending since 2014 and judgment and order
of acquittal passed in the year 2023 as the complainant
fails to serve the process, therefore, cost of Rs.7000/-
each is awarded, which may be deposited with the
Registry of this Court within a period of four weeks from
today. On depositing the same, Registry is directed to
remit the amount of Rs.2000/- in the account of Shishu
Gruh, Paldi, by electronic mode and remaining amount
shall be given to the respondent-accused after
verification.
13. Learned advocate Mr.Hajare submits that he would
see that the respondent-accused appears before the
learned trial Court on receiving the notice from the
concerned Court.
14. It is further clarified that no any unnecessary
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adjournments would be sought for before the learned trial
Court and both the parties would cooperate with the trial
and to see that the matter is concluded without any
further delay.
15. Resultantly, these appeals are allowed. The
judgment and order of acquittal dated 10.03.2023 passed
by the learned Judicial Magistrate First Class, Galteshwar,
Sevalia Court below Exhibit 1 in Criminal Case No.627 of
2014 and in other allied Criminal Cases is quashed and
set aside. The proceedings shall stand restored to their
original number on the file of the learned Magistrate and
prosecution shall now proceed from the stage when the
judgment and order of acquittal was passed.
16. Record and Proceedings be sent back to the
concerned Court, forthwith.
(M. K. THAKKER,J)
M.M.MIRZA
