Mangalmurti Welding Elctrode ... vs Pareshbhai Shantilal Limbasiya
2023 Latest Caselaw 6770 Guj

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     R/SCR.A/2345/2022                           JUDGMENT DATED: 14/09/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CRIMINAL APPLICATION NO. 2345 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE M. R. MENGDEY                      Sd/-

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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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     MANGALMURTI WELDING ELCTRODE MANUFACTURING COMPANY
            THROUGH BHARATBHAI GOPALBHAI PITRODA
                            Versus
                PARESHBHAI SHANTILAL LIMBASIYA
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Appearance:
MR VISHWAJITSINH V JADEJA(11128) for the Applicant(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1
MR J K SHAH, APP for the Respondent(s) No. 2
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 CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY

                             Date : 14/09/2023

                            ORAL JUDGMENT

1. The present petition has been filed by the petitioner - original complainant under Article 226 of the Constitution of India read with Section 482 of the Code of Criminal Procedure

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R/SCR.A/2345/2022 JUDGMENT DATED: 14/09/2023

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and prayed for following prayer(s):-

"12(A) This Hon'ble Court be pleased to admit and allow the present petition.

(B) This Hon'ble Court be pleased to quash and set aside the order dated 31.07.2021 passed by the learned Additional Chief Judicial Magistrate, Gondal in Criminal Case No.2316 of 2016 below Exh.1 (Annexure-A) in the interest of justice.

(C) This Hon'ble Court be pleased to restore the Criminal Case No.2316 of 2016 in the interest of justice.

(D)...."

2. Learned advocate for the petitioner has submitted that the petitioner herein had filed a complaint for the offence punishable under Section 138 of the Negotiable Instrument Act against the respondent no.1 herein. The said complaint was registered as Criminal Case No.2316 of 2016 before the Court of Additional Chief Judicial Magistrate, Gondal. The said complaint came to be dismissed for default by the Additional Chief Judicial Magistrate, Gondal vide order dated 31.07.2021 which is sought to be challenged in present petition.

3. Learned advocate for the petitioner has submitted that upon perusal of the Rojkam, a copy of which is produced on record, it would be clear that on each and every occasion when the matter was posted for hearing before the Trial Court, learned advocate appearing for the petitioner had remained present. Lastly, when the matter was at the stage of for appearance of the accused i.e. respondent no.1 herein, on 02.07.2021, the Magistrate had ordered issuance of non-bailable warrant against

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the present respondent no.1 and the matter was posted on 13.07.2021. On 13.07.2021, the matter came to be adjourned to 31.07.2021. However, through inadvertence, learned advocate appearing for the petitioner was of the impression that the matter was adjourned to 21.08.2021 and that is how he could not remain present before the Court on 31.07.2021.

4. Learned advocate for the petitioner has submitted that the Coordinate Bench of this Court, vide its judgment dated 23.03.2018 rendered in Special Criminal Application No.938 of 2018 has held that the availability of an alternative remedy of filing an appeal is not an absolute bar to entertain an application under Section 482 of the Code. Therefore, the present petition in its present form is maintainable. He, therefore, submitted to allow the present petition by quashing and setting aside the impugned order passed by the Additional Chief Judicial Magistrate, Gondal and remand the matter back to the concerned Trial Court.

5. Though served, none appears for the respondent no.1.

6. Learned APP for the respondent no.2 - State has submitted to pass the appropriate order.

7. Heard learned advocates for the parties and perused the material available on record. Upon perusal of the record, it appears that on 02.07.2021, the Trial Court had ordered for issuance of non-bailable warrant to the accused i.e. respondent no.1 herein and the matter was ordered to be posted on

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13.07.2021. On 13.07.2021, the matter came to be adjourned to 31.07.2021. On that day, learned advocate for the petitioner did not remain present. The petitioner has produced a copy of the Rojkam of the Trial court on record. Upon perusal of the same, it appears that on all the occasions except 31.07.2021, learned advocate for the petitioner has remained present before the Trial Court. The matter came to be adjourned on various dates due to non-appearance of the accused i.e. respondent no.1 herein, and therefore, the Trial Court was constrained to order the issuance of non-bailable warrant upon the accused.

8. The Trial Court, in its impugned order, has recorded that the complainant has not made any attempt for service of summons or warrant upon the accused nor has he tendered the fresh address of the accused. The said finding recorded by the Trial Court appears to be improper, as it is not a duty of the complainant to serve the summons, warrant or notice to the accused.

9. The Coordinate Bench of this Court, in its judgment dated 23.03.2018, passed in Special Criminal Case No.938 of 2018 has held that merely because an alternative remedy of filing an appeal is available to the present petitioner, the present petition filed invoking Article 226 of the Constitution of India and Section 482 of the Code of Criminal Procedure is not barred.

10. Having regard to the aforesaid facts, the present petition deserves to be allowed and hence, the same is hereby allowed. The proceedings of Criminal Case No.2316 of 2016 are ordered

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to be restored to its original file. The Trial Court shall proceed with the matter from the stage at which it was ordered to be dismissed for default.

Sd/-

(M. R. MENGDEY,J) GIRISH