Gujarat High Court

Patel Bhogilal Haribhai vs State Of Gujarat on 9 November, 2023

Bench: M. K. Thakker

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     R/CR.A/2338/2023                           JUDGMENT DATED: 09/11/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2338 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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                        PATEL BHOGILAL HARIBHAI
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR VAIBHAV N SHETH(5337) for the Appellant(s) No. 1
MR BHARGAV PANDYA APP 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 : 09/11/2023

                            ORAL JUDGMENT

1. Though endorsement on the cause list shows that 'Rule' is

served to Respondent No.2 and as per the Report submitted by

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the Registry, 'Rule' was stated to be served on 30 th October,

2023 and thereafter, matter was listed on 2 nd November, 2023

and it was further adjourned for today. However, Respondent

No.2 either in person or through an advocate remained fails to

appear before this Court. Hence, this appeal was decided finally

in absence of the respondent No.2-accused.

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

Criminal Procedure, challenging the judgment and order of

acquittal dated 26.7.2023 passed by the learned Judicial

Magistrate First Class, Himmatnagar in Criminal Case No.6761 of

2019.

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

the agricultural work and accused is having the Tea Canteen

near Union Bank of India, Himmatnagar Branch. The complainant

used to visit the Bank and therefore, complainant and the

accused were known to each other and were having transactions

for taking the money and paying back to the complainant. It is he

case of the complainant that complainant had lent an amount of

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Rs.2 lacs against which cheque was issued on 25.9.2019 of Union

Bank of India, Himmatnagar Branch bearing Cheque

No.12072173, which was dishonored on depositing with the Bank

and therefore, after following the procedure prescribed under the

Negotiable Instruments Act, a private complaint came to be filed

under Section 138 of the Negotiable Instruments Act as well as

for the offence punishable under Section 420 and 406 of the

Indian Penal Code. Learned Court, after recording the plea, had

issued the summons vide an order dated 30.12.2019 and the

accused appeared before the trial Court on 4.5.2023 on receiving

the Non Bailable Warrant. As the complainant did not appear

before the Court when the impugned order was passed i.e.

26.7.2023, learned Court exercised the power under Section 256

of the Code of Criminal Procedure and dismissed the complaint

for non prosecution and acquitted the respondent-accused from

the charges, which is impugned before this Court.

4. Learned advocate, Mr.Vaibhav Sheth, for the appellant

submits that complainant was under the judicial custody

pursuant to the judgment and order of the conviction passed by

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the learned Additional Chief Judicial Magistrate, Khedbrahma

dated 14.3.2022 in Criminal Case No.56 of 2020 wherein for the

offence punishable under Section 138 of the Negotiable

Instruments Act and it was ordered to undergo sentence of 1

year simple impression. Learned advocate further submits that

there was a judgment and order of conviction passed by the

learned Court, namely, 4th Additional Judicial Magistrate First

Class, dated 2.3.2023 in Criminal Case No.953 of 2018 wherein,

the complainant was ordered to undergo sentence of 6 months'

simple imprisonment in connection with offence punishable

under Section 138 of the Negotiable Instruments Act. Learned

advocate drawn the attention of this Court with regard to the RTI

information, which was provided on 27.3.2023 wherein, it is

observed that both the sentences would run consecutively.

Learned advocate submits that as after completion of one

sentence was ordered to undergo and it was ended

approximately in the month of October, 2023. Learned advocate

submits that though the accused appeared on issuance of the

Non Bailable Warrant on 4.5.2023, learned Court had passed an

order dated 26.7.2023 dismissing the complaint for non

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prosecution. Learned advocate submits that though from the

Rojkam it transpires that vide an order dated 4.7.2023 the notice

to the complainant was issued making it returnable on

26.7.2023, however, the same could not be served as

complainant was under judicial custody for that period. Learned

advocate submits that as he was under the custody, he could

remained present. Mr.Sheth, learned advocate submits that

neither the learned advocate remained present nor he could not

remained present before the Court. Learned advocate for the

appellant submits that if the matter is restored to its original file,

it would be concluded without further delay.

5. Considering the submission advanced by the learned

advocate for the appellant and considering the record, it

transpires that on issuance of Non Bailable Warrant, the

respondent-accused remained present on 4.5.2023. On next

date, i.e. on 8.5.2023 accused has not remained present and the

matter was adjourned. On 11.5.2023 on that day, as per the

record, it transpires that neither the complainant or the learned

advocate nor the accused were present and therefore, matter

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was adjourned to 22.5.2023. On 22.5.2023, learned Court was on

leave and therefore, it was adjourned to 13.6.2023. On

13.6.2023, application was given below Exh.16 by the learned

advocate for the accused that as the respondent-accused needs

some instructions, the time was sought for, which was granted

by the learned Court and matter was adjourned on 4.7.2023. On

4.7.2023, the notice was issued to the complainant as he was not

remained present and matter was adjourned to 26.7.2023. Again

on 26.7.2023, application below Exh.17 was given by the learned

advocate for the accused seeking time on the ground that

accused is sick and therefore, he could not remained present.

Though application was given by the learned advocate for the

accused, learned trial Court dismissed the complaint for non

prosecution of exercising the power under Section 256 without

giving opportunity to the complainant to lead the evidence. From

the record, it appears that on the day when the order was

passed, the complainant was serving the sentence before the

Himmatnagar jail as per RTI information dtd. 27.3.2023. This

Court is conscious of the fact with regard to the custody of the

complainant, learned Court would not have the knowledge.

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However, when the application was given by the learned

advocate for the accused seeking time, instead of dismissing the

complaint, learned trial Court could have adjourned the case.

6. 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 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

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complainant is due to his death."

7. 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.

8. 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 the