Gujarat High Court
Patel Control Panel Thro Ketanbhai ... vs Samirbhai Najirbhai Vohra on 13 February, 2024
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R/CR.A/352/2024 JUDGMENT DATED: 13/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 352 of 2024
With
R/CRIMINAL MISC.APPLICATION NO. 621 of 2024
In
R/CRIMINAL APPEAL NO. 353 of 2024
With
R/CRIMINAL MISC.APPLICATION NO. 796 of 2024
In
R/CRIMINAL APPEAL NO. 354 of 2024
With
R/CRIMINAL MISC.APPLICATION NO. 794 of 2024
In
R/CRIMINAL APPEAL NO. 355 of 2024
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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PATEL CONTROL PANEL THRO KETANBHAI TRIKAMBHAI PATEL
Versus
SAMIRBHAI NAJIRBHAI VOHRA
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Appearance:
MR PARESH M DARJI(3700) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 1
MS MONALI BHATT, ADDL.PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 13/02/2024
COMMON ORAL JUDGMENT
1.Since the issue raised in the these appeals
are similar, they are being decided by a
common judgment. The facts of Criminal Appeal
No.352 of 2024 are taken for the purpose of
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adjudication.
2.Endorsement on the cause list shows that Rule
which was issued in the application for
seeking leave to prefer an appeal was served
on 19.01.2024, however, the respondent has
chosen not to appear before the Court.
3.These appeals are filed challenging the
impugned judgment and order of the acquittal
dated 09.12.2023 passed by the learned trial
Court in Criminal Case No.3716 of 2022
acquitting the respondentaccused under
Section 138 of the Negotiable Instruments
Act, 1886 ('the N.I.Act' referred
hereinafter) by exercising the powers under
Section 256 of the Code of Criminal
Procedure, 1973 ('the Cr.P.C.' referred
hereinafter).
4.It is the case of the complainant that the
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complainant is doing the business of Control
Penal and the respondentaccused is doing the
business of selling milk and paneer. The
respondentaccused had purchased the electric
equipment from the complainant and for the
payment of the same, 11 cheques for the
amount of Rs.15,000/ was issued in favour of
the complainant. On depositing the same, the
cheques were returned with an endorsement of
'insufficient fund' therefore, after
following the procedure prescribed under the
Act, complaint for the offence punishable
under Section 138 of the N.I.Act was filed
before the Competent Court. Four complaints
were filed by the complainant before the
competent Court. Details of complaints are
reproduced hereinbelow:
Criminal Case Cheque Numbers Cheque Amount (Rs.)
3716 of 2022 014979-014980 3,50,000/-
1599 of 2022 028560-028570 3,40,000/-
1600 of 2022 028560-028570 3,40,000/-
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1601 of 2022 025560-028570 3,40,000/-
4.1. Thereafter, from the rojkaam it
transpires that on 20.07.2022 verification
was recorded and summons came to be
issued, making it returnable on
07.10.2022. Thereafter, from the rojkaam,
it further transpires that plea of the
accused was recorded on 10.05.2023 and
case was kept for the cross examination of
the complainant. Rojkaam does not reflect
the absence or present of the
complainant's advocate or the complainant
neither any reasons for adjournments are
stated, however, on 09.12.2023 complaint
came to be dismissed in the absence of the
advocate of the complainant by exercising
the power under Section 256 of the
Cr.P.C., which is impugned before this
Court.
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5.Heard the learned advocate Mr.Paresh Darji
for the appellant and though the Rule was
issued in the application for seeking leave
to prefer an appeal, the respondentaccused
did not appear either through an advocate or
inperson.
6.Learned advocate Mr.Paresh Darji for the
appellant submits that almost on all
occasions learned advocate for the
complainant remained present and on some of
the occasions complainant did not remain
present, however, the case was adjourned not
only because his absence, but because of the
absence of the advocate of the accused as
well as the accused. Learned advocate
Mr.Darji submits that from 02.12.2023 to
10.12.2023 as he was out of India and
therefore, he could not remain present before
the learned trial Court.
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6.1. Learned advocate Mr.Darji submits that
though he instructed the learned advocate,
however, due to some miscommunication, the
learned advocate for the complainant also
not remained present on the day when the
impugned judgment passed and complaint
came to be dismissed. Learned advocate
Mr.Darji submits that it is true that the
case is pending since 2022, but on
perusing the rojkaam, it does not
transpire that the same was remain pending
due to the absence of the complainant
only. Learned advocate Mr.Desai submits
that there was no any settlement arrived
between the party, learned trial Court
under the misconception of the fact
recorded that though settlement is
arrived, the complainant did not remain
present and therefore, the complaint was
dismissed.
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6.2. Learned advocate Mr.Desai submits that
there are different cheques, which were
issued in favour of the complainant, which
were dishonored and therefore, four
complaints filed which were dismissed for
nonprosecution. Learned advocate Mr.Desai
submits that because of the absence of the
learned advocate for the complainant the
complaint though having the fair case has
suffered and considering the time barred
limitation, the complainant would be left
remedy less if the complaint is not
restored to its original file.
7.Considering the issue involve, Section 256 of
the Cr.P.C. is required to be relooked 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,
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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.That two constraints are imposed on the Court
for exercising the powers under Section 256
of the Code of Criminal Procedure. First is
if the Court thinks that in a situation it is
proper to adjourn the hearing, then the
Magistrate shall not acquit the respondent -
accused. Second is when the Magistrate
considers that personal attendance of the
complainant is not necessary on that day, the
Magistrate has power to dispense with the
attendance and proceed with the case. If the
situation does not justify the case being
adjourned, the Court is free to dismiss the
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complaint and acquit the accused. But, if the
presence of the complainant on that day was
quite unnecessary, then resorting to the step
of axing down the complaint may not be a
proper exercise of the power envisaged in the
Section. The discretion must, therefore, be
exercised judicially and fairly without
impairing the cause of administration of
criminal justice.
9.In a case under Section 138 of the Negotiable
Instruments Act, 1881, it is always
complainant, who is at stake for his money
which ought to have paid through the cheuqe.
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
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of the Cr.P.C.
10. From the rojkaam it transpires that, except
one or two occasions the, no absence of the
complainant was recorded, however, there was
no any meticulous recording of the absence in
the rojkaam of the advocate of the
complainant or the complainant himself. It
further transpires that twice the summons was
issued on recording the verification of the
complainant i.e. on 20.04.2022 and on
18.06.2022. The observation made by the
learned trial court in the impugned order
that as the settlement was arrived between
the parties and therefore, the complainant
did not remain present for withdrawing the
complaint appears to be incorrect as there
was no any record supporting that conclusion
neither from the rojkaam.
11. This Court is of the view that due
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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.
It transpires from the record that learned
advocate for the complainant was also not
remained present and as it was submitted by
the learned advocate that the complainant was
out of India therefore, the complainant could
not remain present, and the said fact was not
brought to the notice of the learned trial
Court resulting the dismissal of the
complaint. Therefore, appropriate cost is
required to be imposed while allowing the
present appeal.
12. Resultantly, this appeal is hereby
allowed. The impugned judgments and order of
acquittal dated 09.12.2023 passed by the
learned 2nd Additional Chief Judicial
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Magistrate, Nadiad in Criminal Case Nos.3716,
1599, 1601 and 1600 of 2022 are quashed and
set aside. The proceedings shall stand
restored to their original number on the file
of the learned Magistrate and prosecution
shall now proceed from the stage when the
order of the acquittal was passed. The
complainant is directed to deposit cost of
Rs.15,000/ before the Registry of this Court
within a period of two weeks from the date of
the order. The Registry shall disburse the
same in the name of Shishu Gruh Paldi, by
electronic mode.
13. It is needless to say that no any
unnecessary adjournments would be sought for
before the learned trial Court and both the
parties would cooperate with the trial and to
see that matter is concluded without any
further delay.
(M. K. THAKKER,J)
M.M.MIRZA
