Gujarat High Court

Kalpataru Traders Company Thro ... vs State Of Gujarat on 8 November, 2023

Bench: M. K. Thakker

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     R/CR.A/1175/2023                              JUDGMENT DATED: 08/11/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1175 of 2023


FOR APPROVAL AND SIGNATURE:

HONOURABLE MRS. JUSTICE M. K. THAKKER                                  Sd/-

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1     Whether Reporters of Local Papers may be allowed to                No
      see the judgment ?

2     To be referred to the Reporter or not ?                            No

3     Whether their Lordships wish to see the fair copy of the           No
      judgment ?

4     Whether this case involves a substantial question of law           No
      as to the interpretation of the Constitution of India or
      any order made thereunder ?

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     KALPATARU TRADERS COMPANY THRO MIHIR BABUBHAI PATEL
                            Versus
                       STATE OF GUJARAT
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Appearance:
MR BHAVIK R SAMANI(8339) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2,3
MR BHARGAV PANDYA, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                             Date : 08/11/2023

                             ORAL JUDGMENT

1. Though the endorsement on the cause list shows that the

Rule is served and as per the report submitted by the Registry,

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the same was served on 22.6.2023, no one has filed appearance

to oppose this appeal. Therefore, this Court deems it fit to

consider the appeal in absence of the respondent-accused.

2. This appeal is filed under Section 378 of the Code of

Criminal Procedure, 1973 ('the Code' for short), challenging the

order of dismissal of complaint dated 8.2.2023 on the ground of

non prosecution passed by the learned Additional Judicial

Magistrate (First Class), Kalol in Criminal Case No.3021 of 2019

and the respondent-accused came to be acquitted.

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

doing the business of building material and accused No.1 is the

company who is doing the business of construction, whereas

accused No.2 is proprietor of accused No.1 company. The

accused had approached to the complainant by saying that they

got a tender for construction of the water tank, Bileshwarpura

Gram Panchayat and for that, building material is required

which the accused proposed to purchase from the complainant.

The respondent-accused had purchased the material for the

amount of Rs.1,61,085/- on credit basis and given assurance

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that within a period of three months, the bill would be cleared

and the amount would be paid. As after three months,

repayment of the bill amount was not made, therefore, the

demand was raised and the respondent-accused towards the

payment of the bill issued cheque bearing No.000233 for the

amount of Rs.89,771/- dated 25.3.2019 of Mehsana Urban Co-

operative Bank, C.T.M. Cross Road Branch, Ahmedabad and for

other amount of Rs.21,340/-, cheque bearing No.000646 was

issued. The assurance was given that on depositing the cheque,

the amount would would be credited in the account of the

complainant. On depositing the same, cheque was dishonoured

with the endorsement of 'insufficient fund' and for which, return

memo was issued by the bank on 6.4.2019. Therefore, the

demand was raised and after following the procedure

prescribed under the Negotiable Instruments Act, a private

complaint came to be filed being Criminal Case No.3021 of

2019. The learned Court below had issued the process under

Section 204 of the Code on 18.7.2019 and thereafter, the matter

was adjourned from time to time.

4. It is submitted by learned advocate Mr. Samani that there

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was a communication gap between the learned advocate for the

complainant and the complainant and there was some dispute

with regard to the charges, therefore, the learned advocate was

not remained present and neither the dates were informed to

the complainant, so that he can remain present and in absence

of the learned advocate for the complainant and the

complainant, the impugned order was passed on 8.2.2023

dismissing the complaint for non-prosecution which is impugned

before this Court.

5. Learned advocate Mr. Samani submits that there is no

dispute that for 4 to 5 occasions, the complainant or his

advocate remained absent, but due to reason mentioned

hereinabove, the complainant could not remain present. He

submits that the learned Court had given due opportunity by

adjoining the case from time to time, but as due default of the

complainant, injustice would be caused to the parties and

meritorious case would suffer because of absence of learned

advocate. Learned advocate for the complainant submits that

the complainant would ensure that he would not seek any

unnecessary adjournment and would see that trial is concluded

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without further delay. Learned advocate Mr. Samani prays that

he is also ready to deposit the costs of Rs.10,000/- (Rupees Ten

Thousand only) if the impugned order is quashed and the matter

is restored to its original file.

6. As it is observed in the beginning that the learned

advocate for the respondent or the respondent in person had

chosen not to appear before the learned Court, this Court has

heard learned advocate Mr. Samani and learned APP

Mr.Pandya.

7. Considering the submissions made by learned advocate

Mr. Samani, it transpires from the Rojkam that on 3.7.2022, the

complainant and the accused were not present. Prior to that

presence was recorded of the complainant as on 13.7.2022, both

the advocate as well as the complainant was not present,

therefore, the matter was adjourned on 7.9.2022. On that day,

the learned Court was on leave, therefore, the matter was

adjourned on 2.11.2022. Absence of the complainant was

recorded, however, there was a resolution from the Bar,

therefore, the matter was adjourned on 30.11.2022. On

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30.11.2022, the accused was present and the application was

given under Section 256 of the Code, for which the learned

Court had issued the notice to the complainant and the matter

was adjourned on 4.1.2023. On 4.1.2023, nothing is mentioned

with regard to the service of notice to the complainant, but fact

recorded that the complainant was absent and the accused and

the learned advocate were present. Again it is recorded that

the notice is required to be issued to the complainant and the

matter was adjourned on 8.2.2023. On 8.2.2023, there was no

any reference with regard to the service of notice, however, the

impugned order was passed and the complaint was dismissed

for non-prosecution. It appears from the record that the learned

Court had exercised the powers after giving due opportunity to

the complainant and after issuing the notice, but from the

record, it does not reflect that whether the notice which was

issued was served to the complainant or not. Learned advocate

Mr. Samani submits that there was no notice received by him

which was issued by the learned Court below. As it does not

transpire that whether the notice was served or not and the

conclusion was arrived that the notice was served and he failed

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to remain present before the learned Court. It is true that the

matter was adjourned from time to time on account of absence

of the learned advocate for the complainant and the

complainant, but in the cases relating to the Negotiable

Instruments Act, the complainant who had received the cheque

with hope of honouring the same, unfortunately, the same was

dishonoured and the only remedy which he had approached that

is to file before the concerned Court under Section 138 of the

Negotiable Instruments Act. On dismissing the complaint for

non-prosecution, this Court is of the view that the complainant

would be remediless as these are the proceedings which are

barred by limitation. This Court is of the view that the principles

of natural justice are required and due opportunity to lead the

evidence before the concerned Court is required to be given to

the complainant and the case is required to be considered on its

own merits instead of technical dismissal.

8. Section 256 of the Code of Criminal Procedure, 1973 is

required to be re-looked which is reproduced hereinbelow.

"256. Non- appearance or death of complainant.

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(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 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. In a case under Section 138 of the Act it is always

complainant who is at stake for his money which ought to have

paid through the cheque. Unfortunately, the cheque in question

was dishonored. Under such circumstances, a complaint should

not have been dismissed immediately and Court ought to have

adopted the course to adjourn the case for hearing to some

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other day under provision of Section 256 of the Code of Criminal

Procedure.

10. This Court is of the view that due opportunity is required