Gujarat High Court
Aartiben Ishwargar Gunsai vs State Of Gujarat on 9 January, 2024
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R/CR.A/87/2024 JUDGMENT DATED: 09/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 87 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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AARTIBEN ISHWARGAR GUNSAI
Versus
STATE OF GUJARAT
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Appearance:
MR HITESH P PRAJAPATI(12819) for the Appellant(s) No. 1
MR.KISHAN PRAJAPATI(7074) for the Appellant(s) No. 1
MR ADITYA P MISTRI(11315) for the Opponent(s)/Respondent(s) No. 2
MS MONALI H. BHATT, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 09/01/2024
ORAL JUDGMENT
1. With the consent of the parties, the matter is considered
finally at the admission stage.
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2. This is an appeal filed by the appellant - original
complainant under Section-378 of Code of Criminal Procedure
challenging the judgment and order of acquittal dated
21.06.2023 passed by the learned 2 nd Additional Senior Civil
Judge, Anjar- Kutch in Criminal Case No.554 of 2023,
wherein, the learned trial Court has dismissed the complaint
by exercising the power under Section-256 of the Cr.P.C.
3. It is the case of the complainant that the complainant
and the accused were knowing each-other since last three
years as the brother of the complainant and respondent -
accused was good friend. It is the case of the complainant that
the respondent accused was in need of money to pay the
school fees of his daughter viz.Aashtha, an amount of
Rs.30,000/- was lended by the complainant to the accused. On
raising the demand of aforesaid amount, the cheque bearing
No.035542 dated 01.03.2023 was issued by the respondent -
accused in favour of the complainant with assurance that on
depositing the same, the cheque would be honored. The
aforesaid cheque was deposited with the bank, which was
returned with the endorsement that "CHI REJECT Drawee
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bank for item is in not-clearing mode or has been".
4. Thereafter, on following the procedure prescribed under
the N.I.Act, a private complaint came to be filed being
Criminal Case No.554 of 2023 before the competent court.
The learned trial Court after recording the verification has
issued the process vide order dated 24.04.2023. The
respondent - accused appeared before the learned trial Court
on 06.06.2023 and his plea was recorded below Exh.5.
Thereafter, the matter was adjourned on 19.06.2023. On that
day, nothing is mentioned with regard to the absence and
presence of the complainant. The matter was further kept on
19.06.2023 and on that day, as the complainant was not
present, the application was given by the respondent -
accused below Exh.21 to dismiss the complaint for non-
prosecution. That was allowed and the complaint was
dismissed, which is impugned before this Court.
5. Heard Mr. Kishan Prajapati, learned advocate for the
appellant - original complainant; Mr. Aditya P. Mistri, learned
advocate for the respondent no.2 - accused and Ms. Monali H.
Bhatt, learned APP for the respondent no.1 - State.
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6. Mr. Kishan Prajapati, learned advocate for the appellant
- original complainant submits that the learned trial Court has
passed an order in haste as only single default was committed
by the complainant in not remaining present and that also,
due to the miscommunication on the part of the complainant
and her advocate. Learned advocate further submits that
instead of passing the order under Section-256 of the Cr.P.C.,
the learned trial Court ought to have grant the adjournment
once or ought to have issue the notice to the complainant,
however, instead of doing so, the learned trial Court had
dismissed the matter on technical ground. Learned advocate
further submits that as the matter pertaining to the N.I. Act, is
time barred litigation, therefore, if the complaint could not
restore in its original file, the complainant would left the
remedy-less. Learned advocate further submits that the
complainant would undertake that no any unnecessary
adjournment would be sought and the trial would be
concluded without further delay.
7. On the other-hand, Mr. Aditya P. Mistri, learned
advocate for the respondent no.2 - accused submits that on
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the day, when the impugned order was passed and prior to
that day, neither the learned advocate nor the complainant
remained present and therefore, the learned trial Court had
rightly exercised the power under Section-256 of the Cr.P.C.
dismissing the complaint and acquitted the respondent -
accused. Learned advocate further submits that immediately
after filing of the complaint, the complainant has chosen not
to appear before the Court and therefore, the learned trial
Court has passed the judgment and order of the acquittal,
which is not required to be interfered with.
8. Considering the issue involve, Section 256 of the Cr.P.C.
is required to be re-looked which is reproduced herein-below:
"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 herein-before
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
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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. The discretion under Section256 of the Cr.P.C. has to be
exercised fairly and judiciously without impairing the cause on
administration of criminal justice. 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.
10. Considering the argument advanced by the learned
advocates for the respective parties, this Court finds that the
complaint came to be filed by the complainant on 24.04.2023,
wherein the learned trial Court had issued summons under
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Section-204 of the Cr.P.C. Thereafter, the matter was kept on
06.06.2023 on the day when the accused had appeared and
his plea was recorded. On 06.06.2023, it transpired from the
record and proceedings and rojkam that neither the presence
or the absence of the complainant was recorded by the
learned trial Court, however, the matter was adjourned for the
evidence of the complainant. Therefore, the matter was kept
for the evidence of the complainant on 19.06.2023. From the
Rojkam, it further transpires that absence of the complainant
was recorded, however, application was given below Exh.21
by the respondent - accused to dismiss the complaint for non-
prosecution under section-256 of the Cr.P.C. It was thereafter
kept on 21.06.2023 and on that day, the complaint was
dismissed for non-prosecution. It is true that on filing the
complaint, it is the duty of the complainant to remain present
before the learned trial Court, but at the same time, the
litigant having the fair case, should not suffer because of the
absence and that is also, on once.
11. This Court is of the view that a fair opportunity to lead
the evidence to both the parties are required to be given and
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instead of technical dismissal, the matter is required to be
decided on merits. The matter pertaining to the N.I. Act, is the
time barred litigation and therefore, the submission made by
the learned advocate that on dismissing the complaint, the
complainant would become remedy-less appears to be correct.
12. In the facts and circumstances of the case, this Court is
of the view that the present criminal appeal is hereby allowed
and the complaint is required to be restored in its original
file. The judgment and order of acquittal dated 21.06.2023
passed by the learned 2nd Additional Senior Civil Judge, Anjar-
Kutch in Criminal Case No.554 of 2023 is hereby quashed and
set aside. As the amount involved in the cheque is of
Rs.30,000/-, this court deem it fit not to impose any cost. It is
directed to both the parties to cooperate with the proceedings
of the trial so that the complaint can be concluded without
further delay. Record and proceedings be sent back to the
concerned Court forthwith.
(M. K. THAKKER,J)
A. B. VAGHELA
