Avadh Engineering Pvt.Ltd ... vs State Of Gujarat
2023 Latest Caselaw 4138 Guj

     R/CR.MA/1678/2018                              ORDER DATED: 07/06/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/CRIMINAL MISC.APPLICATION NO. 1678 of 2018

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 AVADH ENGINEERING PVT.LTD THROUGH KAUSHIK AMBALAL PATEL
                          Versus
               STATE OF GUJARAT & 2 other(s)
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Appearance:
MR MANTHAN K BHATT(6549) for the Applicant(s) No. 1
MR PREMAL R JOSHI(1327) for the Respondent(s) No. 2,3
MR. DHAVAN JAISWAL, APP for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                           Date : 07/06/2023
                            ORAL ORDER

1. This application is filed by challenging the order dated

8.4.2017 passed by the learned 9 th Addl. Sernior Civil Judge

& Addl. Chief Judicial Magistrate, Vadodara below Exh.1 in

Criminal Case No.40385 of 2008, converted from old Criminal

Case No.51 of 2008, whereby the complaint is dismissed for

want of prosecution.

2. Brief facts of the case are as such that the applicant -

original complainant has filed complaint under Section 138

read with Section 142 of the Negotiable Instruments Act,

1881 before the Trial Court, which was pending for the

adjudication. During the pendency of that proceedings, the

respondent - accused has approached this Court by way of

Criminal Misc. Application No.3891 of 2012 whereby this

R/CR.MA/1678/2018 ORDER DATED: 07/06/2023

Court has by order dated 18.6.2012 stayed further proceeding.

Thereafter, it seems that on 28.7.2017, this Court has decided

the Criminal Misc. Application No.3891 of 2012 finally by

detailed judgment by dismissing the application filed by the

respondent No.2. This event happened subsequently after

dismissal of the complaint, which is passed by way of

impugned order dated 8.4.2017 passed in below Exh.1

application in Criminal Misc. Application No.40385 of 2008.

The Trial Court has only recorded that neither advocate nor

complainant is present and therefore, the complaint is

dismissed, and therefore, the present petition is filed.

3. Heard learned advocates appearing for the respective

parties.

4. Learned advocate Mr. Manthan K. Bhatt for the

applicant has submitted that the Trial Court has ignored the

fact that this Court by way of interim order passed in

Criminal Misc. Application No.3891 of 2012 has stayed the

further proceedings of the complaint, which is ultimately

decided by this Court by order dated 28.7.2017. He has

further submitted that even otherwise, impugned order is ex

facie bad in the eyes of law, which is passed contrary to the

interim relief granted by this Court in the said Criminal

Misc. Application. The impugned order is other wise

R/CR.MA/1678/2018 ORDER DATED: 07/06/2023

erroneous. He has further submitted that the Court has not

taken into consideration the fact that due to interim relief

granted by this Court, the advocates for the parties were not

attending the proceedings and the Court was not supposed to

proceed with the matter where this Court has granted

interim relief against further proceedings, and therefore, he

prays to allow this application as impugned order is

otherwise bad in the eyes of law.

5. Per contra, learned advocate Mr. N.R. Koyani appearing for Mr. Premal Joshi, learned advocate for the respondent

Nos.2 & 3 has submitted that the Trial Court has not

committed any error as the applicant was not remained

present on that particular day and neither his advocate was

remained present and he/advocate appearing on his behalf

could have pointed before the Trial Court that there is stay

operating in the present proceeding, however, he submits that

this Court may pass appropriate order after considering the

totality of the facts and circumstances of the present case.

6. Learned Assistant Public Prosecutor Mr. Dhavan Jaiswal

appearing for the respondent No.1 - State has submitted that

the Court may pass appropriate order after considering the

facts and circumstances of the present case.

R/CR.MA/1678/2018 ORDER DATED: 07/06/2023

7. I have considered the rival submissions made at the

bar. It transpires that though the complaint is filed and

against that complaint respondent No.2 has already

approached this Court by way of Criminal Misc. Application

No.3891 of 2012 wherein this Court has granted interim

relief vide order dated 18.6.2012, which was subsequently

confirmed by this Court and thereafter, by order dated

28.7.2017, this Court has disposed of the Criminal Misc.

Application No.3891 of 2012, and till that day, the interim

relief granted by this Court was continued and therefore, the

further proceeding before the Trial Court in Criminal Misc.

Application No.40385 of 2008 is stayed but the Trial Court

has acted in hurried manner and without perusing the entire

records available on the record with the matter and has

passed very cryptic order by observing that neither applicant

- complainant nor advocate for the applicant remained

present since so many occasions and therefore, the complaint

is required to be dismissed, which is per se illegal, improper

and is erroneous. The Trial Court has committed gross error

in dismissing the complaint more particularly when this

Court has stayed the further proceedings. It can be said that

the Trial Court has exceeded its jurisdiction, and when this

Court has stayed further proceeding, there is no reason for

the Trial Court to pass such order.

R/CR.MA/1678/2018 ORDER DATED: 07/06/2023

8. Considering all the aforesaid facts, it is appropriate to

interfere in the impugned order passed by the Trial Court by

exercising my powers under Article 227 of the Constitution of

India read with Section 482 of the Criminal Procedure Code,

1973.

9. The impugned order dated 8.4.2017 passed below Exh.1

th Addl. Sernior

Civil Judge & Addl. Chief Judicial Magistrate, Vadodara is

hereby quashed and set aside.

10. It is further directed to the learned Trail Court to

proceed with the Criminal Case No.40385 of 2008 (old

Criminal Case No.51 of 2008) and shall decide such

application, as expeditiously as possible, preferably within a

period of one year from the date of receipt of the order.

8. In view of the above, this application is allowed.

Direct service is permitted.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA