Jay Laxmi Industries Through Brijesh ... vs State Of Gujarat
2023 Latest Caselaw 8738 Guj

Gujarat High Court

Jay Laxmi Industries Through Brijesh ... vs State Of Gujarat on 18 December, 2023

                                                                                     NEUTRAL CITATION




     R/CR.A/2784/2023                                JUDGMENT DATED: 18/12/2023

                                                                                      undefined




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
      R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2784 of 2023

FOR APPROVAL AND SIGNATURE:

HONOURABLE MRS. JUSTICE M. K. THAKKER

==========================================================

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 ord22406er made thereunder ?

==========================================================
     JAY LAXMI INDUSTRIES THROUGH BRIJESH KAUSHIKCHANDRA
                            RASANIYA
                              Versus
                       STATE OF GUJARAT
==========================================================
Appearance:
KUSHAL A DESAI(9435) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2
MS VRUNDA SHAH, ADDL.PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                                Date : 18/12/2023

                                ORAL JUDGMENT

1.This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 ('the Cr.P.C.' hereinafter) challenging the

NEUTRAL CITATION

R/CR.A/2784/2023 JUDGMENT DATED: 18/12/2023

undefined

impugned judgment and order dated 23.09.2021 passed by the learned Additional Judicial Magistrate First Class, Halol in Criminal Case No.1413 of 2019, dismissing the complaint for non­prosecution by exercising the power under Section 256 of the Cr.P.C. and acquitting the respondent­accused from the charges.

2.It is the case of the complainant that, the complainant is the manufacturer of the agricultural products, pesticides, etc. The respondent­accused had purchased the goods from the complainant on credit basis, on demanding the bill amount, the respondent­ accused had issued the cheque in the name of the complainant firm for the amount of Rs.1,14,202/­ bearing cheque No.344554 dated 18.05.2019. On depositing the aforesaid cheque with the H.D.F.C. Bank, Halol, it was returned with an endorsement "Account Closed"

on 21.05.2019. Thereafter, the complainant had issued the notice and after following the due procedure prescribed under the Negotiable Instruments Act, 1881, private complaint came to be filed being Criminal Case No.1413 of

NEUTRAL CITATION

R/CR.A/2784/2023 JUDGMENT DATED: 18/12/2023

undefined

2019. Learned Court vide order dated 11.07.2019 issued the process under 204 of the Cr.P.C., making it returnable on 08.08.2019. Matter was adjourned time to time and ultimately, on the day when the impugned judgment and order was passed i.e. on 23.09.2021, learned Court had dismissed the complaint on the ground of non­prosecution and the respondent­accused was acquitted from the charges, which are impugned before this Court.

3.Heard the learned advocate Mr.Kushal Desai for the appellant, learned APP Ms.Vrunda Shah for the respondent­State and as the respondent No.2 had chosen not to appear despite having the sufficient opportunity, this matter was considered in his absence.

4.Learned advocate Mr.Kushal Desai submits that initially the complaint came to be filed on 11.07.2019, where the summons came to be issued, making it returnable on 08.08.2019. Learned advocate Mr.Desai submits that On 08.08.2019, order was passed to give the direct service of summons to serve the accused and the matter was adjourned on

NEUTRAL CITATION

R/CR.A/2784/2023 JUDGMENT DATED: 18/12/2023

undefined

17.09.2019. Again, on 04.10.2019, fresh summons was issued. In the month of June 2020, the case was transferred to the court of learned Principal Senior Civil Judge, Halol. Thereafter, due to Covid­19 matter could not be proceeded. Again, the matter was adjourned from 18.01.2021 onwards for issuance of the summons. From the record it transpires that, for the earlier days neither presence or the absent was recorded of the advocate of the complainant or the complainant only for issuance of the summons, the matter was adjourned time to time. Thereafter, the impugned order was passed on 23.09.2021 observing that the complainant remained failed in serving the summons or the warrant to the accused though the matter was adjourned time to time.

5.Learned advocate Mr.Desai further submits that there was a single default on the part of the complainant for no remaining present, though the case was at the stage of the service of the Bailable or Non­Bailable Warrant and though the accused had despite the summons had been served, chosen not to appear before the learned Court, without

NEUTRAL CITATION

R/CR.A/2784/2023 JUDGMENT DATED: 18/12/2023

undefined

giving an opportunity to the complainant, the case was dismissed for non­prosecution.

6.Learned advocate Mr.Desai further submits that in the cases pertaining to the N.I.Act, the complainant is always on the stake as he did not receive the due amount and unfortunately the cheque was also returned and these are the proceedings having the limitation period, on dismissing the complaint for non­prosecution the complainant would be left remedy less.

7.Learned advocate Mr.Desai for the appellant submits that it is true that the complainant did not remain present on the day when the impugned judgment and order was passed and he is ready to deposit cost of Rs.3000 and prays that if this matter is restored to its original file, no unnecessary adjournment would be sought by the complainant and the matter would be concluded without further delay.

8.Learned advocate Mr.Desai further submits that accused is the resident of the State of Maharastra and despite the summons was

NEUTRAL CITATION

R/CR.A/2784/2023 JUDGMENT DATED: 18/12/2023

undefined

served, he had chosen not to appear before the Court and the learned Court had acquitted the respondent­accused without giving an opportunity to the complainant to lead the evidence and decide the matter on merits.

9.In view of above, the learned advocate Mr.Desai prays to quash and set aside the order and to restore the matter to its original file.

10. Considering the issue involve, 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."

NEUTRAL CITATION

R/CR.A/2784/2023 JUDGMENT DATED: 18/12/2023

undefined

11. The discretion under Section256 of the Cr.P.C. has to be exercised fairly and judiciously without impairing the cause on administration of criminal justice.

12. In a case under Section 138 of the Negotiable Instruments Act, 1881, it is always complainant who is at stake for his money which ought to have paid through the cheuqe. 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 provision of Section 256 of the Cr.P.C.

13. Considering the arguments advanced by the learned advocate for the appellant and on perusing the record, this Court finds that the learned Court had dismissed the complaint for non­prosecution on 23.09.2021 recording the absent of the complainant and on perusing the rojkaam it is found that except the date when the impugned order was passed, the complainant or his learned advocate was present before the concerned Court. Learned

NEUTRAL CITATION

R/CR.A/2784/2023 JUDGMENT DATED: 18/12/2023

undefined

Court ought to have considered the aspect that though the summons was served and application was given for Bailable or Non­ Bailable Warrant, instead of giving the opportunity to the complainant to serve the warrant, learned Court had dismissed the complaint.

14. Learned Court ought to have followed the principles of natural justice by giving the opportunity to lead the evidence to the complainant and instead of dismissing the matter on technical ground, it should have been decided on merits. Therefore, this Court is of the view that the order passed by the learned Court below requires to be quashed and set aside and complaint is required to be restored to its original file. As the appellant was not appeared before the concerned Court therefore, the concerned Court had passed the impugned order, the appropriate cost is required to be awarded and therefore, the appellant is directed to deposit the cost of Rs.3000 with the Registry of this Court and Registry is directed to remit the said amount in the account of Shishu Gruh, Paldi by way of electronic mode.

NEUTRAL CITATION

R/CR.A/2784/2023 JUDGMENT DATED: 18/12/2023

undefined

15. In view of above, this appeal is allowed. The impugned judgment and order dated 23.09.2021 passed by the learned Additional Judicial Magistrate First Class, Halol in Criminal Case No.1413 of 2019, is quashed and set aside. The proceedings shall stand restored to their original number on the file of the learned Magistrate and complainant shall now proceed from the stage when the order of the acquittal was passed. R & P be sent back to the concerned Court forthwith.

16. It is needless to say that the complainant would not seek any unnecessary adjournment and would see that the case is concluded without further delay.

17. Direct Service is permitted.

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