Jay Laxmi Industries Thro ... vs State Of Gujarat
2023 Latest Caselaw 8197 Guj

                                                                                NEUTRAL CITATION




     R/CR.A/2560/2023                           JUDGMENT DATED: 09/11/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2560 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               NO
      to see the judgment ?

2     To be referred to the Reporter or not ?                        NO

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

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

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    JAY LAXMI INDUSTRIES THRO SARVAGNA JIGNESHKUMAR RAVAL
                              Versus
                        STATE OF GUJARAT
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Appearance:
KUSHAL A DESAI(9435) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2
MR BHARGAV PANDYA, ADDL.PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                            Date : 09/11/2023

                            ORAL JUDGMENT

1.This appeal is filed under Section 378 of the

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Code of Criminal Procedure, 1973 ('the

Cr.P.C.' hereinafter) challenging the

impugned judgment and order dated 03.12.2022

passed by the learned Additional Judicial

Magistrate First Class, Halol in Criminal

Case No.641 of 2022, dismissing the complaint

for non­prosecution by exercising the power

under Section 256 of the Cr.P.C. and

acquitting the respondent­accused from the

charges.

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

complainant is the manufacturer of the

agricultural products, pesticides, etc. The

respondent­accused had purchased the goods

from the complainant on credit basis, on

demanding the bill amount, the respondent­

accused had issued the cheque in the name of

the complainant firm for the amount of

Rs.28,48,213/­ bearing cheque No.00578 dated

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07.10.2021. On depositing the aforesaid

cheque with the HDFC Bank, Halol Branch, it

was returned with an endorsement "fund

insufficient" on 08.10.2021. On informing the

above aspect to the respondent­accused, the

respondent­accused sought some time and asked

to redeposit after 20.11.2021 with assurance

that it would be honored and the amount would

be credited in the account of the complainant

firm. Again, on 21.12.2021, cheque was

deposited with the complainant Bank, which

was again dishonored with the endorsement of

"fund insufficient" on 21.12.2021.

Thereafter, the complainant had issued the

notice and after following the due procedure

prescribed under the Negotiable Instruments

Act, 1881, private complaint came to be filed

being Criminal Case No.641 of 2022. Learned

Court vide order dated 02.03.2022 issued the

process under 204 of the Cr.P.C., making it

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returnable on 25.03.2022. Matter was

adjourned time to time and ultimately, on the

day when the impugned judgment and order was

passed i.e. on 03.12.2022, learned Court had

dismissed the complaint on the ground of non­

prosecution and the respondent­accused was

acquitted from the charges, which are

impugned before this Court.

3.Heard the learned advocate Mr.Kushal Desai

for the appellant, learned APP Mr.Bhargav

Pandya for the respondent­State and as the

respondent No.2 had chosen not to appear

despite having the sufficient opportunity,

the case is deciding in his absence.

4.Learned advocate Mr.Kushal Desai submits that

initially the summons was issued, making it

returnable on 25.03.2022. On that day the

application was given by the complainant to

reissue the summons and the same was done

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making it returnable on 29.04.2022. On

29.04.2022, learned Court was on leave but on

the ground that summons is to be issued to

the accused, the matter was adjourned on

04.06.2022.Again, on that day the learned

Court was on leave and case was adjourned for

the issuance of the summons to the accused on

15.07.2022. On 15.07.2022, the summons was

issued to the complainant and direct service

was permitted and the matter was adjourned on

26.08.2022. On that day, the complainant had

changed the advocate, therefore, new advocate

has filed the Vakalatnama below Exhibit­60

and application was given for permitting the

service of summons by direct service below

Exhibit 16, which was granted and the matter

was kept on 14.10.2022. On 14.10.2022 though

the direct service was permitted, but it was

not handed over to the learned advocate for

the complainant, therefore, by observing that

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direct service is to be given to the learned

advocate to serve to the respondent­accused,

the matter was adjourned on 14.11.2022. On

14.11.2022, accused was not present, but the

application was given below Exhibit­18 by the

learned advocate to issue the Bailable or

Non­Bailable Warrant against the respondent­

accused and the matter was adjourned on

03.12.2022. It is submitted by the learned

advocate Mr.Desai for the appellant that as

new advocate came on the record and the case

was at the stage of service of Bailable or

Non­Bailable Warrant as well as the learned

advocate did not inform to the complainant

with regard to the date, the complainant

could not remain present­in­person neither

learned advocate for the complainant was

present. And, the learned Court by exercising

the power under Section 256 of the Cr.P.C.

passed an impugned judgment and order.

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5.Learned advocate Mr.Desai further submits

that there was a single default on the part

of the complainant for no remaining present,

though the case was at the stage of the

service of the Bailable or Non­Bailable

Warrant and though the accused had despite

the summons had been served, chosen not to

appear before the learned Court, without

giving an opportunity to the complainant, the

case was dismissed for non­prosecution.

6.Learned advocate Mr.Desai further submits

that in the cases pertaining to the N.I.Act,

the complainant is always on the stake as he

did not receive the due amount and

unfortunately the cheque was also returned

and these are the proceedings having the

limitation period, on dismissing the

complaint for non­prosecution the complainant

would be left remedy less.

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7.Learned advocate Mr.Desai for the appellant

submits that it is true that the complainant

did not remain present on the day when the

impugned judgment and order was passed and he

is ready to deposit cost of Rs.3000 and prays

that if this matter is restored to its

original file, no unnecessary adjournment

would be sought by the complainant and the

matter would be concluded without further

delay.

8.Learned advocate Mr.Desai further submits

that accused is the resident of the State of

Haryana and despite the summons was served,

he had chosen not to appear before the Court

and the learned Court had acquitted the

respondent­accused without giving an

opportunity to the complainant to lead the

evidence and decide the matter on merits.

9.In view of above, the learned advocate

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Mr.Desai prays to quash and set aside the

order and to restore the matter to its

original file.

10. Considering the issue involve, Section

256 of the Cr.P.C. 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 complainant is due to his death."

11. The discretion under Section256 of the

Cr.P.C. has to be exercised fairly and

judiciously without impairing the cause on

administration of criminal justice.

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12. In a case under Section 138 of the

Negotiable Instruments Act, 1881, it is

always complainant who is at stake for his

money which ought to have paid through the

cheuqe. 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 Cr.P.C.

13. Considering the arguments advanced by

the learned advocate for the appellant and on

perusing the record, this Court finds that

the learned Court had dismissed the complaint

for non­prosecution on 03.12.2022 recording

the absent of the complainant and on perusing

the rojkaam it is found that except the date

when the impugned order was passed, the

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complainant or his learned advocate was

present before the concerned Court. Learned

Court ought to have considered the aspect

that though the summons was served and

application was given below Exhibit­18 for

Bailable or Non­Bailable Warrant, instead of

giving the opportunity to the complainant to

serve the warrant, learned Court had

dismissed the complaint.

14. Learned Court ought to have followed the

principles of natural justice by giving the

opportunity to lead the evidence to the

complainant and instead of dismissing the

matter on technical ground, it should have

been decided on merits. Therefore, this Court

is of the view that the order passed by the

learned Court below requires to be quashed

and set aside and complaint is required to be

restored to its original file. As the

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appellant was not appeared before the

concerned Court therefore, the concerned

Court had passed the impugned order, the

appropriate cost is required to be awarded

and therefore, the appellant is directed to

deposit the cost of Rs.3000 with the Registry

of this Court and Registry is directed to

remit the said amount in the account of

Shishu Gruh, Paldi by way of electronic mode.

15. In view of above, this appeal is

allowed. The impugned judgment and order

dated 03.12.2022 passed by the learned

Additional Judicial Magistrate First Class,

Halol in Criminal Case No.641 of 2022 is

quashed and set aside. The proceedings shall

stand restored to their original number on

the file of the learned Magistrate and

complainant shall now proceed from the stage

when the order of the acquittal was passed. R

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& P be sent back to the concerned Court

forthwith.

16. It is needless to say that the

complainant would not seek any unnecessary

adjournment and would see that the case is

concluded without further delay.

17. Direct Service is permitted.

(M. K. THAKKER,J) M.M.MIRZA