Rajesh Ramkishan Gupta vs State Of Gujarat
2023 Latest Caselaw 3696 Guj

     R/CR.A/1792/2022                                JUDGMENT DATED: 01/05/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                        R/CRIMINAL APPEAL NO. 1792 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE NISHA M. THAKORE
==========================================================

1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

==========================================================
                            RAJESH RAMKISHAN GUPTA
                                     Versus
                               STATE OF GUJARAT
==========================================================
Appearance:
MR ANKIT Y BACHANI(5424) for the Appellant(s) No. 1
MR HJ DHOLAKIA(5862) for the Opponent(s)/Respondent(s) No. 2
MR BHARGAV PANDYA ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
==========================================================

    CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

                                 Date : 01/05/2023

                                 ORAL JUDGMENT

1. This Appeal is filed at the instance of the appellant - original complainant challenging the judgment and order dated 22.04.2022 passed by the learned 3rd Additional Judicial Magistrate First Class, Palanpur, in Criminal Case No.4930 of 2019. By the said judgment and order, the learned Magistrate has proceeded to

R/CR.A/1792/2022 JUDGMENT DATED: 01/05/2023

dismiss the complaint in exercise of powers conferred under Section 256 of the Code of Criminal Procedure, resulting into acquittal of the respondent No.2 - original accused for the offence punishable under Section 138 of the Negotiable Instruments Act.

2. This Court by an order dated 17.04.2023 after hearing the learned advocates for the respective parties, had granted leave to appeal and the appeal was admitted and the R & P were called for. Hearing of the appeal was expedited and was directed to be notified on 01.05.2023.

3. Heard Mr. Ankit Bachani, learned advocate on behalf of the appellant - original complainant, Mr. H.J. Dholakia, learned advocate for the respondent No.2 - original accused and Mr. Bhargav Pandya, learned APP on behalf of the respondent No.1 State.

4. Mr. Bachani, learned advocate has submitted that the impugned order passed by the learned trial Court is de hors well settled legal position. He has placed reliance upon the copy of the Rozkam and has submitted that the complaint was registered as Criminal Case on 19.11.2019. The summons were issued upon the respondent accused. Pursuant to the order dated 23.01.2021 passed by the learned Magistrate below Exhibit 1, the Court had proceeded to treat as summons triable case. On the date when the plea was recorded, the complainant had remained present and had tendered the application below Exhibit 10 with a prayer to deposit 10% of the compensation amount to be realized from the accused. Such application was allowed by order dated 01.12.2021 and the learned Magistrate had directed the respondent - accused

R/CR.A/1792/2022 JUDGMENT DATED: 01/05/2023

to make such payment within a period of 60 days. Thereafter, the matter was adjourned to 28.12.2021. The date on which, a request was made for further time to deposit the amount. The accused had failed to appear on that date. Even thereafter, on 21.12.2022, the accused had not remained present. Then on 11.03.2022, the accused had failed to appear and the matter was adjourned and was directed to be notified for evidence of the complainant. On 08.04.2022, the complainant could not remain present and the matter was adjourned in his absence to 12.04.2022. Again on 12.04.2022, the parties could not remain present, the report was tendered by the accused for adjournment and the matter was adjourned for evidence of the complainant to 16.04.2022. Again on 10.04.2022, the report was submitted by the accused seeking exemption, learned Magistrate adjourned the matter for appearance of the complainant to 22.04.2022. Again on 22.04.2022, the accused requested for exemption, however, since neither the complainant nor his advocate could remain present, in their absence, the Court proceeded to pass the order of dismissal for default under Section 256 of the Cr.P.C. By drawing attention to the aforesaid dates, the learned advocate submitted that the trial Court ought to have appreciated the fact that the advocate for the appellant, who was conducting the matter was appointed as Government Pleader and was transferred to Deesa court. In such circumstances, the appellant was in process of engaging the new Lawyer. But because of communication gap between the appellant and his lawyer, the appellant was unable to attend the Court proceedings on the date when the matter was listed before the learned Magistrate. He further submitted that fair opportunity may be granted to present his case in the interest of justice.

R/CR.A/1792/2022 JUDGMENT DATED: 01/05/2023

5. On the other hand, the aforesaid submissions of the learned advocate for the applicant, was vehemently objected by Mr. H.J. Dholakia, learned advocate for the respondent No.2 - original accused. By referring the Rozkam, he submitted that the applicant

- original complainant had not appeared on various dates at the stage when the matter was listed for evidence of the complainant. He further submitted that no explanation worth has been offered by the complainant to adopt the liberal approach towards the complainant. He, therefore, urged this Court to confirm the order of acquittal.

6. Mr. Bachani, learned advocate for the applicant, in rejoinder, has invited attention of this Court to the exemption application moved by the accused on various dates. He has referred such applications, which are placed on record and marked as Exhibit 13 to 16. He by relying upon the aforesaid application, submitted that in fact, the accused was directed to deposit 10% of the cheque amount as interim compensation within a period of 60 days after the order dated 01.12.2021. Thereafter, the matter was adjourned at the instance of accused, which is evident from the entry in the Rozkam. In such circumstances, a request was made to quash and set aside the impugned judgment and order and to restore the original complaint back to its file and to decide the matter on merits.

7. Mr. Bachani, learned advocate has submitted that once the complaint is restored, the complainant shall follow the Court proceedings and shall appear before the trial Court as and when his presence is required.

R/CR.A/1792/2022 JUDGMENT DATED: 01/05/2023

8. Considering the arguments made by the learned advocates appearing for the respective parties and having perused the R & P of the Criminal Case, this Court noticed that after the order dated 01.12.2021 passed below Exhibit 10 application, the accused was directed to deposit 10% of the cheque amount as an interim compensation within a period of 60 days from passing of such order. A request was made on behalf of the learned advocates representing the respondent accused as is evident from Exhibit 11 to 16. In such circumstances, presence of the complainant for leading evidence has not proceeded. The deposit of 10% of the cheque amount seems to have been made on 21.02.2022 as transpired from the Purshish presented by the advocate for the accused. After adjournment sought by the accused, the matter was once again listed before the learned Magistrate for evidence of the complainant on 22.04.2022. In my opinion, the learned Magistrate ought to have granted one opportunity to the complainant to lead the evidence. Section 256 of Cr.P.C. gives discretionary powers of the Magistrate to dispense with the attendance of the complainant and to proceed with the case. However, such discretionary powers has to be exercised judiciously. This Court on various occasions has held that the attempt should be made by the Court to decide the matter on merits rather than to dismiss the matter on technical ground by referring to Section 256 of Cr.P.C.

9. For the foregoing reasons, present appeal succeeds. The impugned judgment and order dated 22.04.2022 passed by the learned 3rd Additional Judicial Magistrate First Class, Palanpur, in Criminal Case No.4930 of 2019 is hereby quashed and set aside. The complaint is restored to its original status. The complainant is directed to appear before the learned Magistrate on the date which

R/CR.A/1792/2022 JUDGMENT DATED: 01/05/2023

may be fixed for leading the evidence.

Considering the fact that the original complaint relates to the year 2019, the learned Magistrate is directed to expeditiously conclude the hearing of the aforesaid Criminal Case.

With this observations, present appeal stands disposed of. R & P received by this Court is directed to be sent back forthwith to the concerned trial Court.

(NISHA M. THAKORE,J) Y.N. VYAS