Muhammad Harun Abdul Samad Dayma vs State Of Gujarat
2023 Latest Caselaw 8146 Guj

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     R/CR.A/1408/2023                           JUDGMENT DATED: 08/11/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1408 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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                   MUHAMMAD HARUN ABDUL SAMAD DAYMA
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MUHAMMADYUSUF M KHARADI(9509) 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 : 08/11/2023

                            ORAL JUDGMENT

1. This Court has passed the following order on 23 rd October,

2023:

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"As per the endorsement of the board, Notice is served to the respondent no.2 - accused, but no-one has filed appearance. With a view to giving one more opportunity, let this matter be listed on 08.11.2023. In the meanwhile, record and proceedings be called for from the concerned Court so as to reach before this Court on or before 07.11.2023".

2. Today also, no one has represented the respondent-

accused either through an advocate or in person.

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

Criminal Procedure challenging the judgment and order

passed by the learned 2nd Additional Senior Civil Judge and

Additional Chief Judicial Magistrate, Palanpur in Criminal Case

No.876 of 2018 dated 14th November, 2022 acquitting the

respondent from the charges and dismissing the complaint

for non prosecution under Section 256 of the Code of Criminal

Procedure.

4. It is the case of the complainant that complainant is in

doing the business of Chicken and as accused was

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purchasing the Chicken from the shop of the complainant,

they were knowing to each other. Respondent-accused had

purchased Chicken of Rs.1,11,101/- from the complainant on

credit basis. On demanding the said amount, the cheque was

issued for the amount of Rs.1 lac bearing Cheque No.200226

of State Bank of India, Radhanpur Branch. On depositing the

cheuqe with the Bank, the same was returned with

endorsement of "insufficient fund" on 18.1.2018. Therefore,

after following procedure prescribed under the Negotiable

Instruments Act, private complaint came to be filed under

Section 138 of the Negotiable Instruments Act being Criminal

Case No.876 of 2018 dated 14.11.2022.

5. The learned Court, after following the procedure, has

issued the summons under Section 204 of the Code of

Criminal Procedure vide an order dated 11.4.2018. As the

respondent-accused was not remaining present on 8.8.2018

bailable warrant was issued and on 25.2.2021 non bailable

warrant was issued. On the day when the order was passed,

non bailable warrant was in existence. However, due to

miscommunication on the part of the learned advocate and

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the complainant, complainant could not remained present,

neither learned advocate remained present, therefore, order

was passed on 14th November, 2022 dismissing the case for

non prosecution, which is impugned before this Court.

6. Heard learned advocate, Mr.M.M.Kharadi, for the

appellant and learned APP, Mr.Bhargav Pandya, for the

Respondent-State.

7. As the respondent-accused has chosen not to appear

before this Court, despite sufficient opportunity, this Court

deems it fit to hear the matter in his absence.

8. Learned advocate, Mr.Kharadi, for the appellant

submits that learned Court, before passing the order, had not

properly considered the Rojkam entries wherein, it transpires

that prior to the date, when the order was passed on 17 th

October, 2022, though it was recorded that parties were not

present but learned Court was under the training and

therefore, the matter was adjourned on 14 th November, 2022.

Before that, on 19.9.2022, there was no any absence or

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presence was recorded, however, it is in the stamp, it

transpires that non bailable warrant is in existence and

therefore, the matter is adjourned. Prior to that date i.e. on

1.8.2022, it is recorded by the learned Court that

complainant's advocate is present, accused is absent,

therefore, non bailable warrant was issued.

9. Considering the arguments advanced by the learned

advocate for the respective parties, it transpires that before

taking the matter on merits, relevant provision under 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.

(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

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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."

10. 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 other day under provision of Section 256

of the Code of Criminal Procedure.

11. This Court is of the view that instead of dismissing the

matter on technical ground, learned Court could have given

one opportunity to the complainant to lead the evidence and

to prove the case. From the Rojkam, it transpires that default

which was committed for not remaining present i.e. on

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17.10.2022 and 14.11.2022, the impugned order was passed.

Therefore, this Court is of the view that aforesaid impugned

order is required to be quashed and set aside.

12.. This Court is of the view that due opportunity is required to

be given to the parties to adduce and/or produce their respective

evidence before the concerned Court and matter is required to

be decided on merits instead of this technical dismissal. As this

matter is pending since 2018, therefore, appropriate cost is

required to be awarded. Therefore, present appellant is directed

to pay cost of Rs.15,000/- with the Registry of this Court.

Registry is directed to transmit an amount of Rs.15,000/- in the

account of Shisu Gruh, Paldi, Ahmedabad by electronic

mode or NEFT within a period of 4 (four) weeks from today. It is

further clarified that no any unnecessary adjournments would be

sought for before the learned trial Court and both the parties

would co-operate with the trial and to see that matter is

concluded without any further delay.

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13. In view of the above, this appeal is allowed. The

impugned judgment and order passed by the learned 2nd

Additional Senior Civil Judge and Additional Chief Judicial

Magistrate, Palanpur in Criminal Case No.876 of 2018

dated 14th November, 2022 is quashed and set aside. Matter

is restored to its original file.

14. Record and proceedings be sent back forthwith.

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