Kamleshbhai Rameshbhai Tank vs State Of Gujarat
2023 Latest Caselaw 8595 Guj

Gujarat High Court

Kamleshbhai Rameshbhai Tank vs State Of Gujarat on 12 December, 2023

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     R/CR.A/709/2023                              JUDGMENT DATED: 12/12/2023

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          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
      R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 709 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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                       KAMLESHBHAI RAMESHBHAI TANK
                                  Versus
                            STATE OF GUJARAT
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Appearance:
MR P S DATTA(11324) for the Appellant(s) No. 1
MR PARTHIV A BHATT(5331) for the Opponent(s)/Respondent(s) No. 2
MS DIVYANGNA JHALA, ADDL.PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                              Date : 12/12/2023

                             ORAL JUDGMENT

1.With the consent of the parties, appeal is

being decided finally on admission stage.

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2.This appeal is filed challenging the judgment

and order dated 13.12.2022 passed by the

learned Additional Chief Judicial Magistrate,

Keshod in Criminal Case No.1666 of 2021

acquitting the respondent­accused by

exercising the power under Section 256 of the

Code of Criminal Procedure, 1975 ('the

Cr.P.C.' hereinafter) dismissing the

complaint for non­prosecution.

3.It is the case of the complainant that the

complainant had lent the money of Rs.4 Lakh

to the respondent­accused against which the

cheque bearing No.735875 dated 05.04.2021 was

issued in favour of the complainant and

further the assurance was given by the

respondent­accused that on depositing the

said cheque, the amount would be credited in

his account. On depositing the cheque, it was

returned with an endorsement of 'in

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sufficient' fund and therefore, after

following the procedure prescribed under the

Negotiable Instruments Act, 1886 ('the

N.I.Act' hereinafter), private complaint came

to be filed before the competent court being

Criminal Case No.1666 of 2021.

4.Learned trial Court had issued the process

under Section 204 of the Cr.P.C. vide order

dated 07.08.2021 and thereafter the matter

was adjourned for serving the summons to the

respondent­accused. It transpires from the

impugned judgment and order that the

respondent­accused had changed the address,

initially the summons which was issued below

Exhibit 7, Exhibit 8, Exhibit 9 was returned.

Thereafter, direct service was permitted then

also the respondent­accused was not served

and the impugned judgment and order was

passed dismissing the complaint under Section

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256 of the Cr.P.C., which is impugned before

this Court.

5.Learned advocate Mr.P.S.Datta for the

appellant submits that application dated

27.07.2022 was given for issuance of the

summons below Exhibit 10. Thereafter, the

report was made that summons has been served

through the RPAD on 10.08.2022, however the

respondent­accused was not remaining present

therefore, application was preferred below

Exhibit 12 dated 10.08.2022 to issue the Non­

bailable Warrant. The said application was

allowed and Non­bailable Warrant was issued

against the respondent­accused. Again, from

the record, it transpires that for taking the

direct service of Non­bailable Warrant, an

application was preferred below Exhibit 14

dated 06.09.2022 which was granted by the

learned trial Court and thereafter, the

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matter was adjourned to 01.10.2022. Again,

that Non­bailable Warrant remained unserved

therefore, it was further adjourned on

15.11.2022 and again non­remaining present,

the matter was kept on 30.12.2022 when the

impugned judgment and order was passed.

5.1. Learned advocate Mr.Datta submits that

it is not in dispute that though summons

was served to the respondent­accused, he

remained fail to appear before the

concerned Court and therefore, the Non­

bailable Warrant came to be issued and the

same remained unserved on the date when

the impugned judgment and order was

passed. Learned advocate Mr.Datta submits

that the complainant was under impression

that the Non­bailable Warrant has to be

served through the police officer and

therefore, he could not remain present on

the date when the impugned judgment and

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order was passed. However, he submits that

even before this Court also after issuance

of the Non­bailable Warrant, the

respondent­No.2 appear, which shows that

though the respondent No.2 was in the

knowledge of the proceedings, he evaded

the service of summons as well as the

warrant.

5.2. Learned advocate Mr.Datta submits that

on the date when the impugned judgment and

order was passed, the presence of the

complainant was not required as the matter

was at the stage of service of Non­

bailable Warrant. Therefore, instead of

dismissing the matter for non­prosecution,

the learned trial Court could have

adjourned the matter or could have

directed the police officer to execute the

warrant. Learned advocate Mr.Datta further

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submits that he would undertake that if

this matter would be restored to its

original file, the proceedings would be

concluded without any further delay and he

would cooperate with the trial.

6.On the other hand, learned advocate

Mr.Parthiv Bhatt submits that it is the duty

of the complainant to serve the

summons/warrant to the respondent­accused and

when the complainant remained fail in

discharging the duty, learned trial Court had

rightly acquitted the respondent­accused and

dismissed the impugned complaint. Therefore,

learned advocate Mr.Bhatt submits that no

interference is required and appeal is

required to be dismissed.

7.Considering the submissions advanced by the

learned advocate for the respective parties,

it transpires that on the day when the

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impugned judgment and order was passed, it

was at the stage of execution of the Non­

bailable Warrant against the respondent­

accused. Even from the rojkaam, it transpires

that almost on all occasions the complainant

or his advocate remained present, however, on

the day when the impugned order was passed

neither the learned advocate nor the

complainant remained present and therefore,

the matter was dismissed for non­prosecution.

8.Considering the issue involve, Section 256 of

the Cr.P.C. is required to be re­looked 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

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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."

9.The discretion under Section 256 of the

Cr.P.C. has to be exercised fairly and

judiciously without impairing the cause on

administration of criminal justice.

10. In a case under Section 138 of the

N.I.Act, it is always the complainant, who is

at stake for his money which ought to have

paid through the cheque. Unfortunately, the

cheque in question was 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.

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11. This Court is of the view that these are

the proceedings, which are barred by the

Limitation Act and on dismissing the

complaint, the complainant would be remedy­

less and before dismissing the complaint on

technical ground, learned Court could have

adjourned the matter as the complaint was at

the stage of execution of the Non­bailable

Warrant. It further transpires from the

record that though summons was served to the

family member of the respondent­accused, the

respondent­accused remained fail in appearing

before the learned trial Court and before

this Court also on issuance of the Non­

bailable Warrant, he appeared through an

advocate. This shows that the respondent­

accused is evading the service of notice or

summons with a view to delay the proceedings.

It is further clarified that no any

unnecessary adjournments would be sought for

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before the learned trial Court and both the

parties would cooperate with the trial and to

see that matter is concluded without any

further delay. Hence, the complaint, which

is dismissed, is required to be restored to

its original file.

12. Resultantly, this appeal is allowed. The

judgment and order dated 13.12.2022 passed by

the learned Additional Chief Judicial

Magistrate, Keshod in Criminal Case No.1666

of 2021 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 order of the

acquittal was passed. Record and proceedings

be sent back to the concerned Court,

forthwith.

(M. K. THAKKER,J) M.M.MIRZA