Gujarat High Court

Chetanbhai Maganbhai Patel vs State Of Gujarat on 19 October, 2023

Bench: M. K. Thakker

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     R/CR.A/80/2023                            JUDGMENT DATED: 19/10/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 80 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                YES
     to see the judgment ?

2    To be referred to the Reporter or not ?                         YES

3    Whether their Lordships wish to see the fair copy               YES
     of the judgment ?

4    Whether this case involves a substantial question               YES
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                      CHETANBHAI MAGANBHAI PATEL
                                 Versus
                           STATE OF GUJARAT
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Appearance:
MR SAMIR AFZAL KHAN(3733) for the Appellant(s) No. 1
HARSHADKUMAR D PANCHAL(9015) for the Opponent(s)/Respondent(s)
No. 2
MS C.M. SHAH, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                          Date : 19/10/2023

                          ORAL JUDGMENT

1. This is an appeal filed under Section-378 of the Code of

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Criminal Procedure challenging the judgment and order of

acquittal dated 02.12.2022 passed by the learned 5 th Judicial

Magistrate First Class, Ahmedabad (Rural) in Criminal Case

No.23845 of 2021, whereby, the order under Section-256 of

Cr.P.C. was passed and the complaint was dismissed for

default.

2. Brief facts arising from the appeal are as under:-

2.1 The present applicant - appellant had filed the complaint

before the concerned Court under Section-138 of the N.I. Act,

in which, it is contended that the appellant as well as the

respondent were friends and as the respondent was having

financial need, he approached to the appellant and borrowed

Rs.6,00,000/-. At the time of borrowing the amount, an

assurance was given that within two months, the amount

would be paid. The aforesaid amount was given on

02.02.2021. After two months, when the demand was raised

with regard to the repayment of the amount, the two cheques

were given by the present respondent - accused in favour of

the complainant for an amount of Rs.3,00,000/- each. On

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depositing the said cheques, it was dishonoured with the

endorsement of 'insufficient fund' and therefore, after

following the due procedure prescribed under the N.I. Act, a

private complaint came to be filed, which was numbered as

Criminal Case No.23845 of 2021.

2.2 In the aforesaid complaint, an order was passed for

issuance of summons to the accused on 13.06.2021. From the

rojkam, on the day, when the impugned order was passed i.e.

02.12.2022, the complainant nor his learned advocate was

remain present and therefore, under Section-256 of Cr.P.C.,

an order was passed dismissing the complaint and the same

order was under challenged before this Court.

3. Heard, learned advocates appearing for respective

parties and perused the impugned judgment and order of the

trial Court.

4. Learned advocate Mr. Samir Afzal Khan for appellant

submitted that though in the morning before the same Court,

he appeared and conducted the other matters, somehow, after

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the recess, he could not have appeared and he asked his

junior colleague to remain present, but unfortunately, the

junior colleague had also not remain present and therefore, in

absence of the complainant's advocate, the impugned order

was passed. To support his contention, learned advocate has

relied on the daily cause-list of the learned advocate and

submitted that though number of matters were listed on that

day and conducted one case before the same court, the

learned court below had passed an order dismissing the

complaint without giving any opportunity or without

adjourning the matter for next date. Learned advocate further

submits that before exercising the power under Section-256 of

the Cr.P.C., the Court could have issued summons or notice to

the complainant, which is the prime requirement under

Section-256 of the Code, however, without fulfilling the

aforesaid requirement, the learned Court below had passed an

order dismissing the matter for default, therefore, the same is

prayed to be quashed and requests to restore the matter in its

original file.

5. On the other hand, Mr. Harshadkumar Panchal, learned

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advocate for the respondent no.2 submits that, on 02.11.2022

was not the only occasion when he was not present, but prior

to that also, for three occasions, neither the complainant nor

his advocate was remain present and therefore, learned Court

below had rightly dismissed the matter for default as from the

impugned order, it reveals that though the summons of

process was issued to respondent - accused, the same was not

served and complainant was not sincere in conducting case

and therefore, learned advocate had rightly dismissed the

aforesaid complaint and acquitted the respondent - accused

from the charges. Therefore, he prayed that no interference is

required and the appeal is required to be dismissed.

6. Considering the arguments advanced by the learned

advocates for the parties, it transpires that the learned Court

had issued the process to the accused, but the complainant

remain failed serving the same and on the day, when the

order was passed, the complainant or his advocate was not

remain present. It further transpires from the order that there

was no any summons was issued to the complainant before

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

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7. Section-256 of Cr.P.C., is required to be re-looked, which

is reproduced herein-below.

"Section-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."

8. Requirement under Section 256 of the Code of Criminal

Procedure, 1973 is that;

(I) summons must have been issued to the complainant,

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(II) the Magistrate should be of opinion that for some

reasons, it is not proper to adjourn the hearing of the

case to some other day, and

(III) the date on which the order under Section 256 (1)

of the Code of Criminal Procedure, 1973 can be

passed is the day appointed for appearance of the

accused or any day subsequent thereto which the

hearing of the case has been adjourned.

9. Considering the aforesaid provision, it transpired that

before exercising the power under Section-256 of Cr.P.C., the

learned Court could have issued the summons informing the

complainant with regard to next date of hearing and if, he

would not have appeared on that day, then the learned Court

could have exercised the powers under Section-256 of Cr.P.C.

That in a case under Section-138 of N.I. Act, it is always the

complainant, who is at stake on his money, which ought to

have been paid through a cheque. Unfortunately, the cheque

in question was dishonoured. Under such circumstances,

criminal complaint should not have been dismissed

immediately and Court could have adopted the course and

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adjourned the case after issuing summons to complainant. The

real test in such type matters is always good faith. It would be

necessary to imply as to whether complainant was absent for

any good reason is not, especially when the accused had not

appeared inspite of summons issued by the Court.

10. This Court has also gone through the decision rendered

by this Court in the case of Dharmesh Bhogilal Patel,

Proprietor of Vikram Dairy vs. Manishbhai Gandabhai Patel

passed in Criminal Appeal No.1102 of 2020. In the case of

Govindkumar Kantibhai Patel vs. State of Gujarat passed in

Special Criminal Application No.938 of 2018 and the decision

rendered by the Apex Court reported in the case of BLS

Infrastructure Limited Vs. Rajwant Singh And Other, reported

in 2023 (4) SCC 326.

11. Relevant findings and observation of the Apex Court in

case of BLS Infrastructure Limited Vs. Rajwant Singh And

Other are as follow:

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14.In Associated Cement Co. Ltd. (supra), the purpose of inserting a provision like Section 256 of the Code was discussed and in light thereof, in paragraph 16, it was observed as under:

"16. What was the purpose of including a provision like Section 247 in the old Code (or Section 256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the court on all posting days can be put to much harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. The section, therefore, affords protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, the court has a duty to acquit the accused in invitum."

After observing as above, it was held that where the complainant had already been examined as a witness in the case, it would not be appropriate for the Court to pass an order of acquittal merely on non-appearance of the complainant. Thus, the order of acquittal was set- aside and it was directed that the prosecution would proceed from the stage where it reached before the order of acquittal was passed."

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12. In view of the above, this Court is of the view that the

complaint is required to be restored and the impugned order

is required to be quashed, however, as it emerging from the

rojkam that since last three occasions, complainant was not

remain present, therefore, appropriate cost is required to be

awarded to the complainant. That vide order dated

14.09.2023, Rs.2,500/- was directed to be deposited with

Legal Aid Authority of High Court of Gujarat, in addition to

that, the complainant is directed to deposit further