Gujarat High Court
Aditya Groups Ascom Leasing And ... vs State Of Gujarat on 26 October, 2023
Bench: M. K. Thakker
NEUTRAL CITATION
R/CR.A/1518/2023 JUDGMENT DATED: 26/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1518 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 DHRUV K DAVE(6928) for the Appellant(s) No. 1
MADANSINGH O BAROD(3128) 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. Rule. Mr.Madansingh Barod, learned advocate waives
service of rule on behalf of Respondent No.2 and learned APP,
Ms.Divyangna Jhala, waives service of rule on behalf of
Respondent-State.
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2. This appeal is filed under Section 378 of the Code of
Criminal Procedure, 1973 challenging the judgment and order
passed by learned Principal Civil Judge, and Judicial Magistrate
First Class, Garbada, dated 15.04.2023 in Criminal Case No.1057
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.
3. 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.087638 of UCO Bank dated 31 st
August, 2017 of Rs.1,16,000/- 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.
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4. On depositing the said cheque, it was dishorned on
6.9.2017 '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
No.1057 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
declaring the acquittal to the respondent-accused, which is
impugned before this Court.
5. 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
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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
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.
6. 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
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original file and also ready to undertake that no any unnecessary
adjournment was sought for and would cooperate with the trial
Court.
7. On the other hand, learned advocate, Mr.Barod submits
that the case is pending since 2017 and in the impugned order, it
is observed by the learned trial Court that even territorial
jurisdiction also does not fall with the same court, therefore,
learned trial Court is rightly exercised the power under Section
256 of the Code of Criminal Procedure and dismissed the matter
and therefore, it is not required to interfere and therefore, it is
prayed to dismiss the appeal.
8. 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
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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."
9. 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
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the day appointed for appearance of the accused or any
day subsequent thereto which the hearing of the case
has been adjourned.
10. 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
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.
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11. 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,
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.
12. Learned advocate for the appellant submits that as the
concerned advocate who was appearing before the trial Court did
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
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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.
13. 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.
14.. 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,
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appropriate cost is required to be awarded to the complainant.
Therefore, cost of Rs.10,000/- is awarded, which may be
deposited with the Registry of this Court within a period of 2
(two) weeks from today and same may be disbursed in the name
of Respondent-accused, after due verification. 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.
15. In view of the above, this appeal is allowed. The impugned
judgment and order passed by learned Principal Civil Judge, and
Judicial Magistrate First Class, Garbada, dated 15.04.2023 in
Criminal Case No.1057 of 2017 is quashed and set aside. Rule
made absolute. Matter is restored to its original file.
16. Record and proceedings be sent back forthwith.
(M. K. THAKKER,J)
ASHISH M. GADHIYA
