Aditya Groups Ascom Leasing And ... vs State Of Gujarat
2023 Latest Caselaw 7901 Guj

                                                                                NEUTRAL CITATION




     R/CR.A/1520/2023                           JUDGMENT DATED: 26/10/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1520 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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     ADITYA GROUPs ASCOM LEASING AND INVESTMENT LTD. THRO
               DINESH NIKUMBH S/O DEVAJI NIKUMBH
                             Versus
                       STATE OF GUJARAT
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Appearance:
MR SHREYANG S VAYEDA(10917) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2
MS DIVYANGNA JHALA APP for the Opponent(s)/Respondent(s) No. 1
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    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                            Date : 26/10/2023

                           ORAL JUDGMENT

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

Criminal Procedure, 1973 challenging the judgment and order

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R/CR.A/1520/2023 JUDGMENT DATED: 26/10/2023

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passed by learned Principal Civil Judge, and Judicial

Magistrate First Class, Garbada, dated 15.04.2023 in

Criminal Case No.1029 of 2017 whereby learned Court below

exercised the power under Section 256 of the Code of Criminal

Procedure, 1973 and dismissed the matter for non-prosecution

declaring the acquittal of the accused.

2. It is the case of the complainant that he is doing the

finance business having the license issued by the Reserve Bank

of India (RBI). The present complainant had given the finance as

a personal loan to the respondent-accused and against the

same, Cheque bearing No.000642 of IDBI Bank dated 16 th

August, 2017 of Rs.62,400/- was issued by Respondent-

accused in favour of the complainant with an assurance that on

depositing the same, it would be honored and amount would be

credited in the account of the complainant.

3. On depositing the said cheque, it was dishorned on

29.08.2017 'due to insufficient funds' and therefore, the private

complaint under Section 138 of the Negotiable Instruments Act

came to be filed before the learned Court being Criminal Case

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No.1029 of 2017. It transpires from the record that though

summons were issued, accused had not appeared and therefore,

non-bailable warrant was issued against the respondent-accused.

On the day of the impugned order i.e. 15.4.2023, learned

advocate for the complainant or the complainant remained failed

to appear before the Court and therefore, learned trial Court

exercised the power under Section 256 of the Code of Criminal

Procedure and dismissed the matter for non prosecution while

declaring the acquittal to the respondent-accused, which is

impugned before this Court.

4. Learned advocate, Mr.Dave appearing for the appellant

submits that present complainant had committed default in

appearing before the learned trial Court for single occasion i.e.

4.3.2023 and on the next date i.e. 15.4.2023, the order was

passed under Section 256 of the Code of Criminal Procedure

dismissing the matter for default. Learned advocate for the

appellant submits that instead of dismissing the matter for

default, learned trial Court could have given an opportunity to

the complainant and could have issued the summons as per the

provisions mentioned under Section 256 of the Code of Criminal

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Procedure. Learned advocate further submits that as per the

requirement of Section 256 of the Code of Criminal Procedure

without issuance of summons, learned trial Court ought not to

have exercised the power under Section 256 of the Code of

Criminal Procedure and without following the same, impugned

order was passed and therefore, the learned advocate submitted

that the same is required to be quashed and set aside.

5. Learned advocate for the appellant further submits that on

the earlier date, the advocate of the complainant was present

i.e. on 21.1.2023, however, due to the death of the advocate of

the complainant, he could not remained present on 4.3.2023. As

the present complainant was in the process of engaging other

advocate, the complainant could not remained present because

of the aforesaid unavoidable circumstances. Learned advocate

further submits that he is ready to deposit the cost with the

Registry of this Court if this matter would be restored on its

original file and also ready to undertake that no any unnecessary

adjournment was sought for and would cooperate with the trial

Court.

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6. Considering the arguments advanced by the learned

advocate for the respective parties, it transpires that before

taking the matter on merits, relevant provision under 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 complainant is due to his death."

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7. Requirement under Section 256 of the Code of Criminal

Procedure, 1973 is that;

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

(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.

8. Applying the aforesaid provision in the present case, it

transpires from the Rojkam that the respondent-accused, though

summons have been issued, chosen not to appear before the

Court and for that order issuing Non Bailable Warrant was

passed, which was in existence on the day when the impugned

order was passed. It transpires that on 21.1.2023, the

complainant was not present but the advocate of the

complainant was present and the matter was adjourned as the

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Non Bailable Warrant was not served and on hearing of Exh.6

application. On 4.3.2023, the complainant was not present

neither advocate was present. It is observed that accused is also

not present, therefore, matter was adjourned for hearing of

Exh.6 application and on service of Non Bailable Warrant. On

15.4.2023, neither the advocate for the complainant nor the

complainant himself was present and the order impugned was

passed dismissing the matter for default.

9. This Court finds that before exercising the power under

Section 256 of the Code of Criminal Procedure, the prime

requirement i.e. issuance of the summons was not followed as it

does not transpire from the Rojkam. In the present appeal,

learned advocate for the respondent-accused appeared through

learned advocate, however, in the proceedings before the trial

Court, though Non Bailable Warrant was in existence, he had

chosen not to appear before the Court and therefore, the matter

was delayed from the year 2017.

10. Learned advocate for the appellant submits that as the

concerned advocate who was appearing before the trial Court did

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expire, therefore, no one had appeared before the Court below

on 4.3.2023 and 15.4.2023. As from the record, it transpires that

the stage of the trial was for service of Non Bailable Warrant and

at that stage, presence of the complainant was not that much

required. The real test in such like matter is always good faith. It

would be necessary to imply in cause as to whether the

complainant was absent for any good reason or not, especially

when accused had not appeared in spite of Non Bailable Warrant

issued by the Court. In opinion of this Court that instead of

taking the technical view, the Court could have adjourned the

matter or could have issued the 'Notice'. The discretion under

Section 256 of the Code of Criminal Procedure, has to be

exercised fairly and judiciously without impairing the cause on

administration of criminal justice.

11. 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

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adopted the course to adjourn the case for hearing to some other

day under provision of Section 256 of the Code of Criminal

Procedure.

12.. 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 this matter is pending since 2017, therefore,

appropriate cost is required to be awarded to the complainant.

Therefore, cost of Rs.10,000/- is awarded. Registry is directed to

transmit an amount of Rs.10,000/- in the account of Shisu Gruh,

Paldi, Ahmedabad by electronic mode or NEFT within a period of

2 (two) 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 co-operate with

the trial and to see that matter is concluded without any further

delay.

13. In view of the above, this appeal is allowed. The impugned

judgment and order passed by learned Principal Civil Judge,

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and Judicial Magistrate First Class, Garbada, dated

15.04.2023 in Criminal Case No.1029 of 2017 is quashed

and set aside. Matter is restored to its original file.

14. Record and proceedings be sent back forthwith.

(M. K. THAKKER,J) ASHISH M. GADHIYA