Kaliben Babubhai Parmar Legal Heirs Of ... vs State Of Gujarat
2024 Latest Caselaw 311 Guj

Gujarat High Court

Kaliben Babubhai Parmar Legal Heirs Of ... vs State Of Gujarat on 11 January, 2024

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     R/CR.A/106/2024                            JUDGMENT DATED: 11/01/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

       R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 106 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
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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    KALIBEN BABUBHAI PARMAR LEGAL HEIRS OF BABUBHAI NANABHAI
                            PARMAR
                              Versus
                        STATE OF GUJARAT
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Appearance:
MR VA MANSURI(2880) for the Appellant(s) No. 1,2,3,4,5
APURVA K JANI(7057) for the Opponent(s)/Respondent(s) No. 2
MS MONALI BHATT APP for the Opponent(s)/Respondent(s) No. 1
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 CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                            Date : 11/01/2024

                           ORAL JUDGMENT

1. This appeal is filed, challenging the judgment and order dated 14.07.2023 passed by the learned Judicial Magistrate First Class, Dhansura in Criminal Case No.5 of 2020 by which, the learned Court had exercised the powers under Section 256 of the Code of Criminal

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Procedure and dismissed the complaint for non-prosecution.

2. It is the case of the complainant that the complainant is doing the agriculture work and earn his livelihood. The accused is the Secretary of Seva Sahkari Mandali Limited, Bilvania and as they were staying in the same village, they were knowing to each other. The complainant was in need of the finance and therefore, he met with the accused to get the loan from the Mandli. On filing the application, the loan of Rs.2,11,000/- was sanctioned and was disbursed through Sabarkantha District Central Co-operative Bank, Dhansura branch. As the loan was sanctioned through the respondent - accused, for repayment of the loan, the amount of Rs.3,90,000/- was given to the accused to deposit the same with the Mandli. On making inquiry, it was found that the amount has not been deposited in the Mandli, therefore, the complainant went to the respondent - accused and the respondent - accused had informed that as the amount has already been spent by him for his personal purpose, he would deposit the said amount with the Mandli within a period of one month. Assurance was given that if respondent - accused would remain fail in depositing the amount, then the cheque which is issued be deposited on 02.12.2019 in the event, he would fail to deposit the amount with the Mandli. The complainant had deposited the cheque, which was returned with the endorsement of insufficient fund and, therefore, after following the procedure prescribed under the Negotiable Instruments Act, 1881 (for short, the "N.I. Act"), a private complaint came to be filed before the learned competent Court for the offence punishable under Section 138 of the N.I. Act. After verification came to be recorded by the learned trial Court, the process came to be issued vide order dated 03.01.2020. It is the case of the complainant that during the pendency of the complaint, the complainant died on 11.02.2023. Therefore, purshish came to be filed below Exh.31 by

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the learned advocate to permit the heirs to appear in place of the complainant, as party in the complaint. Thereafter, the matter was adjourned on four consecutive dates i.e. on 26.04.2023, 11.05.2023, 15.06.2023 and 14.07.2023. On all these dates, neither the heirs nor the learned advocate for the complainant remained present. Therefore, the learned trial Court had dismissed the case for non- prosecution and acquitted the respondent - accused from the charges, which is impugned before this Court.

3. Heard learned advocate Mr.V.A. Mansuri for the appellants and learned advocate Mr.Apurva Jani for the respondent - accused.

4. The learned advocate for the appellants submits that on 11.02.2023, the complainant died, therefore, purshish came to be filed on 23.03.2023 below Exh.31. Thereafter, the matter was adjourned on 26.04.2023. On that day, no absence or presence was recorded of the complainant or his advocate and it was observed in the Rojkam that on being called out, neither the accused nor his advocate is present. The application for exemption was granted and the matter was adjourned on 11.05.2023. On 11.05.2023, the learned Court was on leave and, therefore, the matter was kept on 15.06.2023. On 15.06.2023, neither the complainant nor his advocate remained present, therefore, notice came to be issued to the complainant, making it returnable on 14.07.2023. On 14.07.2023, notice was returned with death certificate of the complainant below Exh.33 and, therefore, the complaint came to be dismissed for non-prosecution. Learned advocate Mr.Mansuri submits that due to the sudden death of the complainant, the heirs could not approach the learned Court below and file application for bringing the heirs on record. The learned advocate submits that after the purshish was filed below Exh.31, on one occasion, the absence of the complainant and his advocate was recorded i.e. on

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15.06.2023 and thereafter, the matter was dismissed on 14.07.2023. The learned advocate submits that due to the single default, the case of the complainant was dismissed and though having the fair case but, due to dismissal, injustice was caused to the complainant. Therefore, the learned advocate prays to restore the matter to its original file. The learned advocate further submits that as there was a default in not filing the application for bringing heirs on record, they are ready to deposit the cost awarded by this Court and also undertake that no any further adjournment could be sought for and the trial would be concluded without further delay. On this request, the learned advocate prays to quash the impugned order and to restore the complaint to its original file.

5. On the other hand, learned advocate Mr.Apurva Jani submits that even prior to the dates when the death certificate was filed below purshish Exh.31, on various occasions, neither the complainant nor his advocate remained present and therefore, the learned trial Court had rightly exercised the powers under Section 256 of the Code of Criminal Procedure and dismissed the complaint and acquitted the respondent - accused from the charges. The learned advocate submits that as the provision under Section 256 provides that on the death of the complainant, the complaint can be dismissed, there is no illegality committed by the learned trial Court in exercising the powers under Section 256. The learned advocate submits that the appeal deserves to be dismissed and the impugned order is required to be confirmed.

6. 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

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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 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."

7. On being heard and on perusing the Record and Proceedings, this Court finds that though the matter is pending since the year 2020 but, the respondent - accused appeared and plea was recorded below Exh.7 on 09.03.2020. Thereafter, due to Covid-19, this matter was adjourned on various occasions. Lastly, this Court finds that on 14.09.2022, the complainant remained present and neither the accused nor his advocate remained present and therefore, the bailable warrant came to be issued below Exh.30 and the same was remained unserved upto 31.12.2022. Thereafter, on 31.01.2023, the presence of all the parties was recorded and complaint came to be adjourned on 03.03.2023 for the purpose of cross-examination of the complainant. Between this period, the complainant died on 11.02.2023, therefore, on 03.03.2023, the complainant was absent. On 23.03.2023, the purshish came to be filed below Exh.31 and the death certificate was placed on record. Subsequent to that date, only on 15.06.2023, the absence of the complainant and his advocate came to be recorded and on the next date thereafter, on 14.07.2023, the complaint came to be dismissed.

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8. This Court is of the view that instead of dismissing the complaint on technical ground, fair opportunity was required to be given to the parties to lead their evidence and the complaint is required to be decided on merits. It should be the endeavour of the Court to render substantial justice to the parties and not to resort the technicalities to defeat the substantial right of the person. It is true that the complaint which is filed, is to be decided expeditiously but, at the same time, it is required to be considered that the decisions should not be at the impairing the cause on administration of the justice. The complaint pertaining to the Negotiable Instruments Act is barred by the limitation, therefore, the complainant would not have any other remedy, except to file a complaint under Section 138 of the N.I. Act. The real test in the matters like this, has always the good fate and real reason is to be inquired by the learned trial Court before dismissing the complaint. From the case, it transpires that the heirs could not be brought on record and the complaint was adjourned for one occasion for that purpose and thereafter, the matter was dismissed for non- prosecution.

9. In the opinion of this Court, instead of dismissing the complaint, the learned trial Court ought to have adjourned the matter by giving one more opportunity to the complainant to file an application for bringing heirs on record and to lead their evidence. Therefore, in the opinion of this Court, the complaint is required to be restored to its original file and the impugned order is required to be quashed and set aside. At the same time, cost is required to be awarded, as the complainant remained absent and committed default in filing an application for bringing heirs in time and, therefore, cost of Rs.10,000/- be deposited with the Nazir department of the learned trial Court by the complainant within a period of two weeks from today. On depositing the same, the same

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shall be disbursed in the name of the respondent - accused after due verification.

10. Resultantly, this appeal is allowed. The order dated 14.07.2023 passed by the learned Judicial Magistrate First Class, Dhansura in Criminal Case No.5 of 2020 is quashed and set aside. The complaint is ordered to be restored to its original file. Record and Proceedings be sent back to the concerned learned trial Court.

11. It is needless to say that all the parties may co-operate with the trial and not seek any adjournment unnecessarily and to see that the complaint is concluded without any further delay. Direct service is permitted.

(M. K. THAKKER,J) Hitesh