Gujarat High Court
Karishma Dinesh Dhankani vs Pooja Collection Proprietorship Firm on 19 February, 2024
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R/CR.A/409/2024 JUDGMENT DATED: 19/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 409 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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KARISHMA DINESH DHANKANI
Versus
POOJA COLLECTION PROPRIETORSHIP FIRM & ORS.
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Appearance:
MR HARDIK A DAVE(3764) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 1,2
MS MONALI BHATT, ADDL.PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 3
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 19/02/2024
ORAL JUDGMENT
1.Though Rule is served in the application for
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seeking leave to prefer an appeal, as per the
report filed by the Registry, it was served
on 10.01.2024, no one has appeared either in
person or through an advocate. Hence, this
appeal was heard in absence of the
respondentaccused.
2.Present appeal is filed by the appellant
original complainant challenging the judgment
and order dated 13.10.2023 passed by the
learned 10th Additional Civil Judge and
Judicial Magistrate First Class, Surat in
Criminal Case No.52555 of 2022, whereby the
accused were acquitted from the charges
punishable under Section 138 of the
Negotiable Instruments Act, 1886.
3.Facts of the present case are mentioned
hereinbelow:
3.1. It is the case of the complainant that
the complainant is doing the business in
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the name and style of Ridhan Fashion
Private Limited and the respondents
accused are the proprietor of Pooja
Collection. The complainant had sold the
fabric material to the accused and for the
payment of the goods, three cheques
totaling the amount of Rs.1,35,126/ was
issued in favour of the complainant. On
depositing the said cheuqes, the cheques
were returned with an endorsement 'payment
stop by borrower'. Therefore, after
following the due procedure prescribed
under the N.I.Act, private complaint came
to be filed before the competent court.
3.2. After recording the verification,
summons came to be issued under Section
204 of the Code of Criminal Procedure,
1973 ('the Cr.P.C.' referred hereinafter)
to the accused vide order dated 02.09.2022
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which was remained unserved till the date
of passing of the impugned order. On the
day when the impugned order was passed,
learned trial Court has observed that the
matter has been pending at the stage of
process to accused. However, complainant
or his advocate consistently remained
absent for five days i.e. on 27.04.2023,
08.06.2023., 20.07.2023, 04.09.2023 and
the date on which the impugned order was
passed i.e. on 13.10.2023. Learned trial
Court by exercising the power under
Section 256 of the Cr.P.C. had dismissed
the complaint for nonprosecution due to
absence of the complainant and his
advocate, which is impugned before this
Court.
4.Heard the learned advocate Mr.Hardik Dave for
the appellantoriginal complainant and as
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observed earlier no one has appeared though
Notice was issued in the application for
seeking leave to prefer an appeal.
5.Learned advocate Mr.Hardik Dave for the
appellant submits that initially the summons
was issued by the learned trial Court
thereafter, for the reissuance of the
summons, the matter came to be adjourned time
to time. Lastly, advocate of the complainant
remained present on 05.11.2023. Thereafter,
on three occasions learned trial Court either
on training or was on leave and therefore,
the miscommunication on the part of the
learned advocate and the complainant, the
complainant could not remain present for four
occasion.
5.1. Learned advocate Mr.Dave submits that
though the complainant was not remained
present, but at the same time, stage of
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the trial was for the reissuance of the
summons to the accused therefore, instead
of dismissing the complaint, learned
trial Court ought to have issued the
summons or warrant to the accused and
could have dispensed the presence of the
complainant. However, learned trial Court
has passed the impugned judgment and order
of acquittal and therefore, the learned
advocate has prayed to set aside the
impugned order and order to restore the
original criminal case to its file.
6.Considering the submissions advanced by the
learned advocate for the appellant and before
going into the merits, the provisions under
which, the impugned order is passed, is
required to be relooked. Section 256 of the
Code of Criminal Procedure is reproduced
herein below:
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"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 nonappearance of
the complainant is due to his death."
7.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 -
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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
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.
8.Considering the above provisions of law as
well as considering the record and provisions
which are part of the appeal, it transpires
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that the summons came to be issued vide order
dated 02.09.2022 thereafter, the matter came
to be adjourned on 29.09.2022 where the
complainant or his advocate remained absent.
8.1. Again, the case was adjourned on
05.11.2022 where the presence of the
complainant's advocate was recorded and
the case was adjourned for reissuance of
the summons on the application preferred
by the complainant below Exhibit 6. The
matter came to be adjourned on 14.12.2022
where the trial Court was on leave. Again,
on 14.12.2022 the learned trial Court was
on training, on 27.01.2023 learned trial
Court was on leave and on 14.03.2023 the
same position where the learned trial
Court was on leave. Thereafter, the
absence of the complainant and his
advocate was recorded on 27.04.2023,
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08.06.2023, 20.07.2023, 04.09.2023. On
30.10.2023 again the complainant and his
advocate remained absent therefore, the
learned trial Court has passed an impugned
order by exercising the power under
Section 256 of the Cr.P.C.
9.The prosecution of a private complaint for an
offence under Section 138 of the N.I.Act is
different from the prosecution of the
complainant in respect of the offences
punishable under the Indian Penal Code. For
an offence under Section 138 of the N.I.Act,
there is no remedy available for the
complainant when the complaint was dismissed
for default in view of the limitation
prescribed.
10. Considering the record, it transpires
that the stage of the trial was for re
issuance of the summons and to secure the
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presence of the accused before the trial
Court, the learned trial Court instead of
exercising the power under Section 256 of the
Cr.P.C. dismissing the complaint and ought to
have adopted the course available in the Code
by adjourning the case and could have
dispensed with the presence of the
complainant or could have issued the
warrant/summons to the accused.
11. In the proceedings under the N.I.Act,
the complainant would be always at the stake
for his money, which ought to have paid
through the cheuqe and 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 either to adjourn the
case for hearing to some other day or could
have issued the warrant to the accused to
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secure his presence under provision of
Section 256 of the Cr.P.C. Instead of this
technical dismissal, learned trial Court
could have decided the case on merits after
giving due opportunities to both the parties
to lead their evidence.
12. In view of above, this Court is of the
view that the impugned order is required to
be set aside and the complaint is required to
be restored to its original file. However, at
the same time, the complainant remained
absent for four consecutive dates, therefore,
appropriate cost is also required to be
imposed while allowing this appeal.
13. Resultantly, this appeal is allowed.
The impugned judgment and order dated
13.10.2023 passed by the learned 10th
Additional Civil Judge and Judicial
Magistrate First Class, Surat in Criminal
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Case No.52555 of 2022. 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.10,000/ before the Registry of this
Court within a period of two weeks from the
date of the order and on depositing the same,
the Registry shall disburse the same in the
account of Shishu Gruh Paldi, by electronic
mode.
14. 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
