Gujarat High Court
Patel Dineshbhai Pragjibhai vs S.N.C. Multitrade And Services ... on 31 March, 2023
Bench: Nisha M. Thakore
R/CR.MA/485/2022 ORDER DATED: 31/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 485 of 2022
In R/CRIMINAL APPEAL NO. 42 of 2022
With
R/CRIMINAL APPEAL NO. 42 of 2022
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PATEL DINESHBHAI PRAGJIBHAI
Versus
S.N.C. MULTITRADE AND SERVICES LTD THROUGH KETANBHAI
KESARBHAI DAMOR AND LAXMIBEN KETANBHAI DAMOR
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Appearance:
MR JAY SHAH FOR MR JINESH H KAPADIA(5601) for the Applicant(s) No.
1
MR SOHAM SHAH ADDL. PUBLIC PROSECUTOR for the Respondent(s)
No. 4
SERVED BY RPAD (N) for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 31/03/2023
ORAL ORDER
1. Heard Mr. Jay R. Shah, learned advocate for Mr. Jinesh
Kapadia on behalf of the applicant and learned APP Mr. Soham
Joshi, learned APP for the respondent No.4 State. Though served,
the respondent Nos.1 to 3 have chosen not to appear and contest
the present application for leave to appeal.
2. Rule returnable forthwith. Learned APP waives service of
Rule on behalf of the respondent No.4 State.
3. This is an application filed under Section 378(4) of the Code
of Criminal Procedure, seeking leave to appeal challenging the
judgment and order dated 22.04.2018 passed by the learned 9 th
Additional Senior Civil Judge & Additional Chief Judicial
R/CR.MA/485/2022 ORDER DATED: 31/03/2023
Magistrate, Vadodara, below Exhibit 1 in Criminal Case No.38226
of 2014. By the said order, the learned Magistrate has proceeded
to exercise the powers conferred under Section 256 of Code of
Criminal Procedure dismissing the complaint by recording the
absence of the complainant and/or his advocate.
4. Mr. Shah, learned advocate appearing on behalf of the
applicant - original complainant has relied upon the decision of
this Court in the case of Govindkumar Kantibhai Patel Vs. State of
Gujarat (decided in Special Criminal Application No.938 of 2018
dated 23.03.208) and has submitted that it has been held that
powers under Section 256 of Cr.P.C. makes it clear that if the
complainant fails to appear, the Magistrate shall acquit the
accused unless for some reasons, he thinks it proper to adjourn
the hearing of the case to some other day. He further submitted
that considering the fact that the learned advocate was engaged to
represent the case of the complainant and the original complainant
was of belief that he is represented by the advocate before the
concerned Court, had not remained present. He urged this Court
that the learned Magistrate has proceeded to record the acquittal
on technical ground. He, therefore, urges to grant leave to appeal.
5. Considering the submissions made by the learned advocate
for the applicant and nature of the dispute involved, this Court is of
the view that present leave to appeal requires consideration.
Hence, the application is allowed.
R/CR.MA/485/2022 ORDER DATED: 31/03/2023
CRIMINAL APPEAL No.42 of 2022:
Issue Notice for final disposal returnable on 21.04.2023.
Learned APP Mr. Soham Joshi waives service of Notice on behalf
of the respondent No.4 State. Direct service is permitted to be
served through RPAD qua rest of the respondents.
Registry is directed to call for R & P so as to reach this Court
before next date of hearing.
(NISHA M. THAKORE,J)
Y.N. VYAS
