Gujarat High Court
Vinny Overseas Limited Thro ... vs State Of Gujarat on 18 October, 2023
Bench: M. K. Thakker
NEUTRAL CITATION
R/CR.A/1727/2023 JUDGMENT DATED: 18/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1727 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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VINNY OVERSEAS LIMITED THRO MULARAM NANURAM PRAJAPATI
Versus
STATE OF GUJARAT
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Appearance:
MR SANJAY PRAJAPATI(3227) for the Appellant(s) No. 1
Mr. MANISH J.PATEL for the Opponent(s)/Respondent(s) No. 2
MS. DIVYAGNA JHALA, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 18/10/2023
ORAL JUDGMENT
1. This appeal is filed under 378(4) of Cr.P.C, challenging the
judgement and order passed by the learned Special Metropolitan
Magistrate, N.I.Act Court, Ahmedabad dated 9.6.2023 in Criminal
Case No. 34575 of 2021, whereby, the learned Court had acquitted
the respondent from the charges under Section 138 of the Negotiable
Instrument Act (for short "N.I.Act")
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R/CR.A/1727/2023 JUDGMENT DATED: 18/10/2023
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2. The brief case is that the the present applicant who is the
original complainant has filed the complaint before the learned
Additional Chief Metropolitan Magistrate, Court No.33, Ahmedabad
bearing Criminal Case No. 34575 of 2021, under Section 138 of
the N.I. Act. After verification recorded by the learned Court, the
process came to be issued. It was case of the complainant that the
accused is customer of the complainant-company and during the
period between 16.12.2019 to 19.02.2022, the accused had
purchased different types of fabrics material from the complainant-
company through invoice worth of Rs. 14,58,601/- in the name and
style of M/s.Mahendra Maneklal Patel. Because of the good relation
with accused, complainant-company had supplied the goods to
accused on credit basis and on raising demand of the bill, accused
had issued three cheques to the complainant-company towards the
part payment of outstanding amount of the complainant-company
from the accused. One of the cheque of Rs.1,50,000/- is the present
subject matter of the complaint which was filed under Section 138 of
the N.I.Act.
3. That, on 12.9.2022 on the appointment of Special Court all the
cases were transferred to the learned Special N.I.Court, Gheekantha.
Ahmedabad. The present Appellant did not appear before the
concerned Court therefore, Learned Special N.I.Act Court was
pleased to pass the judgement and order of acquitting the
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R/CR.A/1727/2023 JUDGMENT DATED: 18/10/2023
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respondent-accused from the charges under Section 138 of the
N.I.Act. The said judgement is under challenged before this Court.
4. Heard Mr. Sanjay Prajapati, learned advocate for the appellant;
Mr. Manish J.Patel, learned advocate for the respondent No.2 and
Ms. Divyagna Jhala, learned APP for the respondent No.1-State.
5. Mr. Sanjay Prajapati, learned advocate for the appellant
submits that after transferring the case to the learned Special Court,
no notice was issued and therefore, he could not appear and in his
absence, the matter was proceeded and the judgement and order of
acquittal was passed on merits. Learned advocate Mr.Prajapati
further submits that this judgement and order of the acquittal is
passed without giving the opportunity of leading the evidence, if the
impugned order is quashed and case is remanded back than he
undertakes to cooperate with the trial and would not seek any
unnecessary adjournment.
6. Mr.Manish Patel learned advocate for the respondent No.2
draws the attention on the Rojkam, where it transpires that even
before transferring the case, the complainant did not appear since
15th April, 2022. Mr. Patel, learned advocate further states at bar
that the Respondent had no objection if this matter will be remanded
back to the concerned Court and the same may be decided on merits
after giving the opportunity to lead the evidence to both the parties.
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7. Considering the submissions advanced by learned advocates
for the respective parties, it transpires that initially the complaint
came to be filed under Section 138 of the N.I.Act before the learned
Metropolitan Magistrate Court No.33, Ahmedabad. It further
transpires from the Rojkam that the presence which is recorded in
the Rojkam of the complainant is on lastly 28 th February, 2022
thereafter, continuously for three occasions, the complainant
remain absent. However, the matter was adjourned time to time.
Thereafter, on appointment of Special Courts for conducting the
cases under Section 138 of the N.I. Act, the case was transferred to
the learned Special Metropolitan Magistrate, N.I. Act Court,
Gheekantha, pursuant to the order passed by the learned Chief
Metropolitan Magistrate dated 29th August, 2022. From 12.9.2022,
the case was before the learned Special Metropolitan Magistrate,
N.I.Act Court, Gheekantha. On perusing the Rojkam, it transpires
that the complainant was not remained present. It also transpires that
no any notice was issued to any parties. It is the duty of the
complainant is to inquire with regard to the status of the complaint
which was filed by him. However, the complainant remained failed
in doing so and the learned Magistrate has also not issued any notice
with regard to transferring the case before the learned Special
N.I.Act Court. This Court is of the view that the natural justice
requires the Court to give opportunity to the parties. They failed to
use such opportunity, at that time, the parties having fair case
should not suffer because of his absence. It should be the endeavour
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of the Court to render substantial justice to the parties and not to
resort to technicality to defeat the substantial rights of the person,
who have knocked on its door in expectation that his grievance
would be redressed. The procedure under Section 138 of the N.I.Act
though the criminal in nature do not really clarify the criminal intent.
Therefore, this Court is of the view that the impugned order of
acquitting the respondent-accused which is without giving
opportunity to the complainant to lead the evidence is required to be
quashed and the matter is remanded back to the concerned Court for
deciding afresh, at the same time from the record of the case, it
transpires that the complainant is also remained failed in discharging
his duty. Therefore, appropriate cost is also required to be awarded.
Accordingly, the present applicant -original complainant is directed
to deposit Rs.10,000/- with Registry of this Court within a period of
two weeks from today which should be remitted in the A/c of
Shishu Group, Paldi, Ahmedabad.
8. Resultanly, this appeal is allowed. The impugned order dated
9.6.2023 passed by the Special N.I.Act Court, Gheekantha,
Ahmedabad in Criminal Case No. 34575 of 2021 is hereby quashed
and the same is remanded back to the learned concerned Court for
deciding afresh. It is needless to clarify that both the parties would
co.operate with the trial and would not seek any unnecessary
adjournment, as this case is pending since 2021.
(M. K. THAKKER,J)
BEENA SHAH
