Gujarat High Court
Rakshit Nitinbhai Patel vs State Of Gujarat on 5 February, 2024
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R/CR.A/2058/2023 JUDGMENT DATED: 05/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2058 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 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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RAKSHIT NITINBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR RAKSHITKUMAR N PATEL(12486) for the Appellant(s) No. 1
BAILABLE WARRANT SERVED for the Opponent(s)/Respondent(s) No. 2
MR.HIREN M MODI(3732) for the Opponent(s)/Respondent(s) No. 2
MS MONALI BHATT, ADDL.PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 05/02/2024
ORAL JUDGMENT
1. This appeal is filed under Section 378 of the Code of
Criminal Procedure, 1973 by Dr.Rakshit Nitinbhai Patel,
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who is the party-in-person before this Court challenging
the judgment and order of acquittal dated 28.04.2023
passed by the learned 10 th Additional Senior Civil Judge
and Additional Chief Judicial Magistrate, Vadodara in
Criminal Case No.18405 of 2021 dismissing the complaint
by exercising the powers under Section 256 of the Code
of Criminal Procedure, 1973 ('the Cr.P.C.' hereinafter).
2. It is the case of the complainant that the complainant
had provided the treatment as a physio therapist to the
wife of the respondent-accused, namely, Kundanben
Patel and raised the bill. As there was a medical
insurance of the accused, the bill was sent to the Bajaj
Allianz General Insurance Company Limited for the
clearance. At the time of the treatment, the two advance
cheque was taken and there was an understanding
between the respondent-accused and the complainant
that after clearance of the amount of medical policy, for
remaining amount, the cheque would be deposited in the
Bank. As per the allegation made in the complaint for
three months, the physio therapy treatment was given by
the applicant. However, the insurance company did not
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clear any amount, therefore, two cheques which were
given in advance were deposited, which were dishonored
for the reason mentioned in the memo Nos.1 and 20 i.e.
"In Sufficient Funds" and "Payment Stopped by the
Drawer." After following the procedure prescribed under
the Act, the private complaint came to be filed before the
Competent Court by the present applicant, who is physio
therapist and advocate also.
2.1. On filing the complaint, summons came to be
issued vide order dated 02.04.2021. The respondent-
accused appeared before the learned trial Court on
27.06.2021. Thereafter, time to time the matter was
adjourned after recording the plea of the respondent-
accused. It transpires from the record that on the day
when the impugned order was passed i.e. on
28.04.2023, the complainant did not remain present
and therefore, the learned trial Court had dismissed
the complaint for non-proseuction, which is impugned
before this Court.
3. Heard the party-in-person, namely, Dr.Rakshit Nitinbhai
Patel and learned advocate Mr.Hiren Modi for the
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respondent-accused.
4. Party-in-person-Dr.Rakshit Patel has submitted that only
on one occasion he was not remained present i.e. on
28.04.2023 and prior to that almost on all occasions he
was present, however, the learned trial Court had
dismissed the complaint for a single default. Mr.Patel has
also submitted that the case is at the stage of cross
examination of the complainant, after conducting some
part of the cross-examination, the case was kept for
producing the certificate as well as other relevant
documents, which were sought during the cross
examination.
4.1. Party-in-person Mr.Patel submits that though all
relevant documents were placed on record, the case
was being adjourned time to time without any genuine
cause. Mr.Patel submits that if the complaint would be
restored to its original file then he would cooperate
with the trial and he would see that the trial is
concluded within the time prescribed by the Court. By
submitting the same, Mr.Patel prays that the complaint
be ordered to restore to its original file and learned
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trial Court may be directed to decide the case on
merits after considering the evidence placed on
record.
5. On the other hand, learned advocate Mr.Hiren Modi for
the respondent-accused submits that the present
applicant, who is an advocate and a physio therapist has
given some treatment to the wife of the respondent-
accused. Initially, the time for the treatment was fixed for
three months, however, after giving one month's
treatment he did not comply with his promise and the
further treatment was not given to the wife of the
respondent-accused. Learned advocate Mr.Modi further
submits that the forge bills were created in the name of
Shubh Hospital though there was no engagement by the
Subh Hospital.
5.1. Learned advocate Mr.Modi further submits that in
fact to put an end to this matter, cheque amount was
deposited, though it was not admitted, but the
applicant did not withdraw that amount with an
ulterior motive to harass to respondent-accused.
Learned advocate Mr.Modi further submits that in fact
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he is ready to deposit the said amount before this
Court also however, acceptance of the amount was
denied by the party-in-person i.e. the applicant.
Learned advocate Mr.Modi submits that the conduct of
the complainant is also required to be looked into as in
the midst of the cross examination the case was
adjourned and he evaded the completion of the cross
examination thereafter on being realized that real
truth would surface on record, he did not remain
present before the trial Court on two consecutive
dates. By submitting same, learned advocate Mr.Modi
prays to dismiss this appeal.
6. Considering the submissions advanced by the learned
advocates for the respective parties, Section 256 of the
Code of Criminal Procedure is required to be considered,
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
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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. Considering the above provisions, it transpires 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 that the
Magistrate considers that the personal attendance of the
complainant is not necessary on that day, the Magistrate
has power to dispense with his presence and to proceed
with the case. If the situation does not justify the case
being adjourned, the Court is free to dismiss the same
and acquit the respondent - accused. But, if the presence
of the complainant on that day was quite unnecessary,
then resorting to the step of axing down the complaint
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may not be proper exercise of the powers envisaged in
Section. The discretion must, therefore, be exercised
judicially and fairly without impairing the cause of
administration of criminal justice.
8. 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
of the Cr.P.C.
9. From the record it transpires that, the impugned order
was passed on 28.04.2023 where the application was
given by the respondent-accused below Exhibit 72 to
exercise the power under Section 256 of the Cr.P.C. due
to absence of the complainant. Prior to that day i.e. on
24.03.2023. The learned trial Court has mentioned in the
rojkaam that advocate is present. It is not clear that the
whether the complainant was present or not. Therefore, it
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would be difficult to come to the conclusion that on the
earlier date the complainant was not present as there
was no any absence or presence of the complainant was
recorded. Prior to that day i.e. 10.02.2023, the learned
Court was on leave therefore the matter was adjourned.
Before that i.e. on various dates the presence of the
complainant is recorded by the learned trial Court.
Therefore from the rojkaam, it transpires that only on the
day when the impugned order was passed i.e. on
28.04.2023 the complainant remained absent.
10. The prosecution of private complaint for the offence
under Section 138 of the N.I.Act largely differs from the
prosecution of the complaint in respect of other 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 is
dismissed for default in view of the limitation prescribed.
11. The allegation made by both the parties is required
to be proved before the learned trial Court by leading the
evidence, therefore It would be inappropriate to entere
into the allegations made by the complainant and the
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respondent-accused at this stage. Principle of natural
justice required that due opportunity be given to the
parties to adduce/produce their respective evidences
before the Court and the matter be decided on its own
merits. Therefore, this Court is of the view that instead of
dismissing the complaint on technical ground, learned
trial Court ought to have decided the same after giving
the due opportunity to both the parties on its merits.
12. From the record it transpires that the case was
adjourned for time to time during the midst of the cross
examination therefore, this Court is of the view that the
complaint is required to be restored to its original file and
the learned trial Court is required to be directed to decide
the same as expeditiously as possible not beyond the
period of four months from the date of receipt of a copy
of this judgment. It is needless to say that the learned
trial Court shall provide sufficient opportunity to both the
parties and both the parties are directed to cooperate
with the trial and shall not seek further adjournment.
13. With the aforesaid direction, this appeal is allowed.
The impugned judgment and order of acquittal dated
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28.04.2023 passed by the learned 10 th Additional Senior
Civil Judge and Additional Chief Judicial Magistrate,
Vadodara in Criminal Case No.18405 of 2021 is hereby
quashed and set aside. The criminal case is restored to
its original file and complaint is sent back to the learned
trial Court for deciding it on merits. Record and
proceeding be sent back to the concerned Court,
forthwith.
(M. K. THAKKER,J)
M.M.MIRZA
