Shri Ram Transport Finance Co. Ltd ... vs State Of Gujarat
2023 Latest Caselaw 8156 Guj

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     R/CR.A/1364/2023                              JUDGMENT DATED: 08/11/2023

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           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

    R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1364 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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     SHRI RAM TRANSPORT FINANCE CO. LTD THRO KULDEEPSINH
                      NIRMALSINH ZALA
                            Versus
                      STATE OF GUJARAT
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Appearance:
MR MANISH J PATEL(2131) for the Appellant(s) No. 1
MS NAMRATA R MULCHANDANI(9956) for the Appellant(s) No. 1
MR BHARGAV PANDYA, ADDITIONAL PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
RULE SERVED for the Opponent(s)/Respondent(s) No. 2
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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 on 2.10.2023, thereafter, the matter was

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adjourned on 1.11.2023 and today is the second returnable date

where neither respondent No.2 in person or through an

advocate is present before this Court to oppose this appeal.

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

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

order passed by the learned 3rd Additional Chief Judicial

Magistrate, Surendranagar in Criminal Case No.490 of 2019,

dismissing the complaint dated 27.4.2023 on the ground of non

prosecution and the respondent-accused came to be acquitted.

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

finance company and lent money to the respondent-accused on

30.7.2012 by agreement No. SURNG0207300003 of

Rs.6,75,000/- against the mortgage of vehicle bearing No.GJ-18-

AT-8918. As the complainant did not pay the loan amount and

issued cheque in favour of the appellant bearing Cheque

No.367951 for the amount of Rs.6,75,000/- and Cheque

No.367952 for the amount of Rs.3,07,460/-. On depositing the

same, the cheque was returned with endorsement of 'account

closed'. Therefore, after following the procedure prescribed

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under provisions of the Negotiable Instruments Act, the private

complaint came to be filed being Criminal Case No.490 of 2019.

The learned Court, after following procedure, had issued the

process vide order dated 3.4.2019. Thereafter from time to time

the matter was adjourned. On the date when the impugned

order was passed, i.e. on 27.4.2023, the complainant nor his

advocate remained present, therefore, by exercising powers

provided under Section 256 of the Code, the learned Court had

dismissed the complaint for non-prosecution which is impugned

before this Court.

4. Heard learned advocate Mr. M.J. Patel for the appellant

and learned APP Mr. Bhargav Pandya for the respondent No.1

State. As respondent No.2 accused is not represented, in his

absence, the matter is taken up for final hearing.

5. Learned advocate Mr. Patel submits that due to oversight,

the learned advocate committed single default in remaining

present on the day when the impugned order was passed.

Learned advocate Mr. Patel submits that in fact, prior to the

date when the impugned order was passed, i.e. on 27.4.2023,

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the learned advocate for the complainant was present and given

the application below Exh. 44 to adjourn the matter on the

ground that the power of attorney of the complainant is not

available and as the case is at the stage of cross-examination of

the complainant, request was made to adjourn the matter which

was granted and thereafter the matter was kept on 27.4.2023

on the day when impugned order passed. Learned advocate Mr.

Patel submits that at the time of issuing the notice, this Court

has ordered to deposit the costs of Rs.10,000/- with the Nazir of

the concerned court which was complied and it was deposited

and the same is lying with the concerned court. Learned

advocate Mr. Patel further submits that if the matter is restored

to its original file, then the complainant would ensure to the

court that no unnecessary adjournment would be asked for and

the case would be concluded without further delay.

6. Considering the submissions advanced by learned

advocate for appellant and on perusing records, it transpires

from the Rojkam that on the day when the impugned order was

passed, the application below Exh. 45 was given by the accused

seeking exemption. Therefore, it transpires that the accused

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was also not present on the day when the order was passed and

they were also seeking time. As the case is at the stage of cross-

examination of the complainant and when the application was

given below Exh. 45 by learned advocate which was granted

also, there was no question arise for delaying the proceedings

due to default of the complainant. As from the Rojkam, it further

transpires that on earlier date, i.e. on 20.4.2023, the

complainant's advocate was present and the application was

given at Exh. 44 and application below Exh. 43 was given by the

accused for seeking exemption which came to be granted by the

learned Court below. Therefore, this Court is of the view that

instead of dismissing the matter on technical ground, the

learned Court would have granted one opportunity to the

complainant and could have adjourned the case and decided the

matter on merits after giving opportunity of leading evidence.

7. Considering the issue involved in the matter, 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."

8. 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.

9. 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. The concerned Court is directed to transfer the

amount of the costs with the Legal Aid Service Authority of the

concerned district 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 cooperate with the trial and to see that matter is

concluded without any further delay.

10. In view of the above, impugned order dated 27.4.2023

passed by the learned 3rd Additional Chief Judicial Magistrate,

Surendranagar in Criminal Case No.490 of 2019 is quashed and

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

made absolute. Record & Proceedings be sent back forthwith.

(M. K. THAKKER,J) Bharat