Pareshbhai Arvindbhai Bhatt vs State Of Gujarat
2023 Latest Caselaw 8046 Guj

                                                                                  NEUTRAL CITATION




     R/CR.A/2485/2023                             JUDGMENT DATED: 03/11/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2485 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE M. K. THAKKER

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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 ?

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                        PARESHBHAI ARVINDBHAI BHATT
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR. ALTAF Y CHARKHA(7271) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2
MR BHARGAV PANDYA APP for the Opponent(s)/Respondent(s) No. 1
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    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                              Date : 03/11/2023

                              ORAL JUDGMENT

Rule. Mr.Jigar Patel, learned advocate for Respondent No.2 and Mr.Bhargav Pandya, learned APP for Respondent - State waive service of rule on behalf of respective parties.

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1. This appeal is filed under Section 379 of the Code of

Criminal Procedure, 1973, challenging the order of acquittal on

the ground of non prosecution passed by the learned Additional

Chief Judicial Magistrate, Godhra dated 26.7.2023 in Criminal

Case No.801 of 2021.

2. It is the case of the complainant that complainant is doing

the business of construction and father of the Respondent No.2 is

the friend of the complainant. Therefore, they came into contact

with the respondent-accused. As the Respondent No.2 was in

financial need, demand of Rs.4,70,000/- was made. However, an

amount of Rs.3,00,000/- was advanced by the complainant on

4.12.2020 by cheque bearing No.002137 of IDBI Bank.

Thereafter, the complainant had given the cash of Rs.1 lac on

5.12.2020 and 70,000/- was paid through Google Pay, in all,

Rs.4,70,000/- was advanced by the complainant for which

agreement was executed on 19.3.2021.

3. It is the case of the complainant that for payment of the

aforesaid amount, Respondent No.2 had issued the cheque

bearing No.000062 of Rs.4,70,000/- of Bank of Baroda, Gandhi

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Chowk, Branch and assurance was given that on depositing the

cheque, amount would be credited in his account. The

complainant had deposited the cheque in his account in the

HDFC Bank on 14th April, 2021 and same was dishonored with

endorsement of 'insufficient fund'. The demand notice was

issued to Respondent No.2 on 10.5.2021, which was served on

17.5.2021 to the Respondent No.2. However, the cheque amount

was not paid nor has given any reply to the demand notice.

Therefore, the private complaint being Criminal Case No.801 of

2021 was filed with the Competent Court under Section 138 of

the Negotiable Instruments Act. The process came to be issued

by the learned Court, vide an order dated 25.6.2021 under

Section 204 of the Code of Criminal Procedure.

4. Thereafter, on 26.7.2023, the application was filed below

Exh.32 by the complainant to grant an adjournment mentioning

that the case is at the stage of the cross examination and to

produce the additional evidence, however, learned advocate,

Mr.Mihir Parikh, who is appearing on behalf of the complainant

went to the Hospital for treatment of the father and therefore,

time was sought, which was not granted by the learned Court.

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Learned Court, thereafter, has passed the impugned order by

which the complaint was ordered tobe dismissed for non

prosecution by observing that since last 3 consecutive dates, the

complainant is not remaining present, therefore, case could not

be proceeded further. Therefore, exercising power provided

under Section 256 of the Code of Criminal Procedure, the

respondent No.2 was acquitted and complaint came to be

dismissed, which is impugned before this Court.

5. Heard the learned advocates for the parties.

6. Learned advocate, Mr.Altaf V. Charkha, for the appellant

submits that impugned order which was passed dismissing the

matter for default is required to be interfered with. As on the day

when the impugned order was passed, the father of the learned

advocate, who is taking care of the matter, was hospitalized and

therefore, the adjournment application was filed. The learned Court

by rejecting the same on 26.7.2023 and immediately on the same

day, without giving an opportunity, the impugned order was

passed. Learned advocate submits that learned Court would have

necessarily implied as to whether the complainant was absent for

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any good reason or not and on dismissing the complaint, the

complainant would left remediless. Learned advocate submits that

even looking to the provision where it is provided that this power

under Section 256 of the Code of Crimimnal Procedure can be

exercised on non appearance or death of the complainant. On the

day, when the impugned order was passed, learned advocate

Mr.S.M.Dholani, appeared and filed an application seeking

adjournment on the ground of non availability of the learned

advocate who is taking care of the matter. Therefore, it cannot be

said that there was no one appeared and Exh.32 application was

filed by learned advocate Mr.S.M.Dholani. By submitting the same,

learned advocate states that complainant would ensure that if the

matter is restored to its original file, then no unnecessary

adjournment would be sought for and would see that case is

concluded without further delay.

7. On the other hand, learned advocate, Mr.Jigar Patel, submits

that since last 3 consecutive dates, the complainant is not

remaining present and the case was delayed because of non

remaining present and non producing the relevant documents on

record and therefore, learned Court had rightly dismissed the case

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and declared the acquittal of respondent No.2 accused and

therefore, learned advocate prays that no interference is required

and appeal is required to be dismissed.

8. Considering the arguments submitted by learned advocates

for the respective parties, Section 256 of the Code of Criminal

Procedure, 1973 is required to be relooked again.

Section 256 in The Code Of Criminal Procedure, 1973

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

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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.

9. This Court has gone through the Record and proceedings of

the case wherein, it is found that prior to the date, when the

impugned order was passed, on 4.7.2013, it is observed that

complainant is not remaining present. Even before that also on

13.6.2023, advocate of the complainant was present but neither

the complainant nor accused was present. On the application of

the accused, the case was adjourned for cross examination of

the complainant. It transpires that the complainant was not

present for last 3 consecutive dates but the learned advocate for

the complainant was present and the time was sought either by

the learned advocate for the complainant or learned advocate for

the accused. This Court is of the view that proceedings under

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Section 138 of the Negotiable Instruments Act though in criminal

nature, do not really signify criminal intent and from the Act,

basic object and purpose of which is to harness the violators of

the transactions arising from mercantile law and to ensure that

necessary commitment flows from the obligation and make them

liable for criminal prosecution to achieve the aforesaid objection.

In the present case, application was given that father of the

learned advocate was unwell and was undergoing the treatment.

The real test in the matter like the present one is always good

faith. Therefore, before passing the impugned order, learned

Court could have given one chance to the advocate of the

complainant and could have adjourned the case. The principal of

natural justice is required that due opportunity be given to the

parties to adduce or produce the respective evidence before the

Court and matter be decided on its own merits. Simultaneously,

as due to default of the complainant, the respondent-accused

has to come before this Court, therefore, the appropriate cost is

required to be awarded to the accused while quashing and

setting aside the impugned order. Therefore, this Court is of the

view that impugned order deserves to be quashed and matter is

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required to be restored to its original file. The appellant is

directed to deposit the cost of Rs.15,000/- with the Registry of

this Court within a period of 2 (two) weeks from today and same

shall be disbursed to the respondent-accused after due

verification. It is needless to say that the parties shall not seek

adjournment unless warranted due to the emergency and would

see that the case is concluded without further delay.

10. In view of the above, impugned order passed by the

learned Additional Chief Judicial Magistrate, Godhra dated

26.7.2023 in Criminal Case No.801 of 2021.is quashed and set

aside. Criminal Case is restored to its original file. Rule made

absolute.

Records and proceedings be sent back forthwith.

(M. K. THAKKER,J) ASHISH M. GADHIYA