Patel Bhavikkumar Arvindbhai vs State Of Gujarat
2023 Latest Caselaw 2178 Guj

     R/CR.A/1701/2022                                  ORDER DATED: 09/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1701 of 2022

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                         PATEL BHAVIKKUMAR ARVINDBHAI
                                     Versus
                               STATE OF GUJARAT
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Appearance:
MR BHUNESH C RUPERA(3896) for the Appellant(s) No. 1
MR. ANAND V THAKKAR(7091) for the Opponent(s)/Respondent(s) No. 2
MS ASMITA PATEL, APP for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                                 Date : 09/03/2023

                                  ORAL ORDER

1. Vide order dated 30.08.2022, delay in preferring the appeal was condoned, and thereafter, vide order dated 06.10.2022, Leave to Appeal was granted.

2. Considering the scope of appeal being in a very narrow compass, both learned advocates appearing for the respective parties have urged the Court to dispose of the appeal finally though the appeal was admitted by recent order dated 06.10.2022.

3. Learned advocate for the appellant-original complainant has submitted that the complaint of the appellant under Section 138 of the Negotiable Instrument Act was dismissed for default, and thereby, the respondent was acquitted. The said order was recorded dehors the guidelines, which were issued from time to time by the High Court especially during the period of Covid-19.

R/CR.A/1701/2022 ORDER DATED: 09/03/2023

4. Learned advocate has submitted that the complaint was filed and was pending before the Trial Court during the period of Covid-19 and under the bonafide impression about the functioning of the Court being regulated by the circulars issued from time to time restricting the entries of the litigants and advocates into the premises and holding of the hearing virtually, the applicant was under bonafide impression of not required to attend the criminal complaint during this period and in aforesaid fact situation that the impugned order came to be passed.

5. Learned advocate for the respondent-accused has objected to the appeal and submitted that even on merits, there does not appear to be any case in favour of the appellant so as to entertain the appeal. Moreover, the order impugned itself records the negligence on the part of the appellant because of which on account of non-appearance consistently, the order has been passed against the appellant.

6. Having considered the rival submissions of the parties and having perused the documents on record, the complaint being Criminal Case No.967 of 2019 was filed with the Additional Chief Judicial Magistrate at Prantij on 08.08.2019. On the very day upon recording of the verification, the summons came to be issued making it returnable on 28.08.2019. By recording the absence of the complainant in the proceedings, the order came to be passed on 09.02.2022 dismissing the complaint on the ground of default. At this stage, it would be appropriate to refer to the circulars issued by this Court on 07.01.2022, wherein pertinent instructions are as under:-

R/CR.A/1701/2022 ORDER DATED: 09/03/2023

"1. All the Court of District Judiciary of the State will function in virtual mode only through video conferencing till further orders to conduct all types of matters through video conferencing.

3. No entry shall be allowed for lawyers or litigants in the Court premise.

14. The Judicial Officers may not pass adverse order owing to the absence of the Advocates / Parties / Witnesses or accused persons."

7. It would also be pertinent to observe that by a separate circular dated 10.02.2022, it was declared that the District Court who wants commence the physical hearing w.e.f. 14.02.2022 by following Standard Operating Procedure. The Courts concerned being in Sabarkantha contained in Annexure- A to the aforesaid circular, the Court functioning physically was to commence from 14.02.2022, whereas the order impugned is passed on 09.02.2022.

8. Considering over all fact situation, the impugned judgment and order requires to be quashed and set aside and the matter be remitted back to the Additional Chief Judicial Magistrate, Prantij to undertake the process afresh for trying the offence under Section 138 of the Negotiable Instrument act. The appeal is allowed. The matter i.e. Criminal Case No.967 of 2019 is restored to the file of Additional Chief Judicial Magistrate, Prantij. Both the parties to remain present before the concerned

R/CR.A/1701/2022 ORDER DATED: 09/03/2023

Magistrate on 27.03.2023. Therefore, no separate notices are required to be issued for either of the parties.

9. Learned advocates for the appellant as well as respondent undertake that both the parties shall remain present before the concerned Additional Chief Judicial Magistrate, Prantij on 27.03.2023.

Direct service is permitted.

(A.Y. KOGJE, J) GIRISH