Gujarat High Court
Harshvadan Arvindbhai Patel vs State Of Gujarat on 11 January, 2024
NEUTRAL CITATION
R/CR.A/281/2023 JUDGMENT DATED: 11/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 281 of 2023
With
R/CRIMINAL APPEAL NO. 284 of 2023
With
R/CRIMINAL APPEAL NO. 289 of 2023
With
R/CRIMINAL APPEAL NO. 308 of 2023
With
R/CRIMINAL APPEAL NO. 316 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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HARSHVADAN ARVINDBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR.MINHAJ M SHAIKH(6847) for the Appellant(s) No. 1
CHHATRADHARI G PASI(8891) for the Opponent(s)/Respondent(s) No. 2
MS MONALI H. BHATT, APP for the Opponent(s)/Respondent(s) No. 1
VASIMRAJA A KURESHI(8609) for the Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Page 1 of 12
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Date : 11/01/2024
COMMON ORAL JUDGMENT
1. Since all the captioned appeals are arising from same
transaction, all are being disposed of by this common
judgment and order. With consent of all parties the matters
are considered finally.
2. The Criminal Appeal No.281 is treated as the lead
matter.
3. This is an appeal filed by the appellant - original
complainant challenging the judgment and order dated
21.09.2021 passed by the learned 15 th Additional Civil Judge
and Chief Judicial Magistrate, Vadodara in Criminal Case
No.36719 of 2010, wherein, the learned trial Court acquitted
the respondent - accused from the charges levelled under the
N.I. Act.
4. It is the case of the complainant that the complainant
and accused were the friends and having the family relations.
That the accused wants to sale the land situated at Village -
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Ghhavat, Taluka Karjan, District - Vadodara and for the
aforesaid transaction, the complainant and other family
members and are friend Manojbhai Bhikhabhai Patel paid an
amount of Rs.54,22,000/- to the respondent - accused. As the
sale-deed was not executed by the respondent - accused, the
amount of agreement to sale was demanded back. To repay
the amount, 10 different cheques were issued by the
respondent - accused in favour of the different persons. The
cheque, which was issued in favour of the complainant, was
deposited with the bank, which was dishonoured with the
endorsement of "opening balance insufficient". Therefore,
after following the due procedure, different private complaints
came to be filed before the learned competent Court. The
details of the different complaints are mentioned herein-
below:-
Sr. Criminal Criminal Court who has Name of Parties Date of
No. Appeal Case No. passed Judgment
common order & Order
1 281/2023 36719/2010 15th Additional Harshvadan 21.09.2021
Civil Judge & Arvindbhai Patel
Chief Judicial Vs.
Magistrate, Dilipbhai
Vadodara Ishwarbhai Patel
2 284/2023 36626/2010 15th Add.C.J. & Dilipbhai 21.09.2021
C.J.M., Chhotubhai
Vadodara Patel
Vs.
Ashwinbhai
Ishwarbhai Patel
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3 289/2023 36717/2010 15th Add.C.J. & Indravadanbhai 21.09.2021
C.J.M., Arvindbhai Patel
Vadodara Vs.
Dilipbhai
Ishwarbhai Patel
4 308/2023 36622/2010 15th Add.C.J. & Harshvadan 21.09.2021
C.J.M., Arvindbhai Patel
Vadodara Vs.
Ashwinbhai
Ishwarbhai Patel
5 316/2023 36628/2010 15th Add.C.J. & Indravadanbhai 21.09.2021
C.J.M., Arvindbhai Patel
Vadodara Vs.
Ashwinbhai
Ishwarbhai Patel
After recording the verification, the learned trial court
issued summons under Section-204 of Cr.P.C. vide order
dated 03.06.2010. Thereafter, the matter was adjourned from
time to time either on the request of the complainant or on the
request of the respondent - accused. On completion of Covid-
19 lock down, the matter was listed on the board on
17.12.2020. On that day, again the matter was adjourned due
to the notification of the High Court of Covid-19. Subsequent
to that date, the case was transferred to the learned 15 th
Additional Civil Judge and Chief Judicial Magistrate, Vadodara
on 18.01.2021. From the rojkam, it transpired that due to
Covid-19, again the case was adjourned to 09.04.2021. On
21.09.2021, the absence of the complainant was recorded and
absence of the accused was also recorded. The application
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was moved by the learned advocate for the accused below
Exh.44 seeking exemption for remaining present, which was
granted and the case was kept on 21.09.2021. On that day,
the impugned order was by the learned trial Court exercising
the power under Section-256 of the Cr.P.C. dismissing the
matter for non-prosecution, which is impugned before this
Court.
5. Heard Mr. Minhaj M. Shaikh, learned advocate for the
appellant - original complainant; Mr. Chhatradhari Pasi,
learned alongwith Mr. Vasimraja Kureshi, learned advocate
for the respondent no.2 - accused and Ms. Monali H. Bhatt,
learned APP for the respondent no.1 - State.
6. Mr. Minhaj M. Shaikh, learned advocate for the
appellant - original complainant submits that on completion of
the Covid-19 Lock-down, the case was adjourned for once
i.e.21.09.2021 and as the complainant was not having the
knowledge with regard to the listing of case on board, he
could not remain present and therefore, on the same day, the
order was passed by the learned trial Court dismissing the
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matter for non-prosecution. Learned advocate further submits
that on that day, the accused was also not present and
therefore, an application below Exh.44 was filed seeking
exemption for remaining present by the learned advocate for
the accused. Learned advocate submits that at the time of
condoning the delay and issuing the notice in the application
for leave to prefer an appeal, this Court vide order dated
20.07.2023 imposed the cost of Rs.10,000/-, which is lying
with the Treasury Office of the trial Court.
7. Learned advocate submits that it is true that the matter
was pending since the year 2010, but it was not only sole
ground of the non-remaining present of the complainant, as it
was adjourned from time to time by one or the another reason
including non-remaining present of the accused also. Learned
advocate further submits that if the amount deposited by the
appellant before learned trial Court is disbursed in favour of
the accused, then he would not have any objection. Learned
advocate submits that if this impugned order is quashed and
the complaint is restored to its original file, then complainant
would undertake that they would not seek any unnecessary
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adjournment and the trial be concluded without any further
delay. With this request, learned advocate prays to quash the
impugned order and to remit the matter back to decide on
merits.
8. On the other-hand, Mr. Chhatradhari Pasi, learned
advocate for the respondent no.2 - accused submits that there
are total six cases filed by the complainant against the
respondent - accused. Out of six cases, in one case, the
acquittal was awarded, which was remain unchallenged.
Therefore, even if this Court quashed the order and the
complaint would restore to its original file, then also, the same
fate would met with this complaint, as the other similar nature
of the complaint was resulted into the acquittal. Learned
advocate further submits that not only the occasion, when the
impugned order was passed, but prior to that also, the
complainant was remain absent and the matter is lingering
since 2010 without any reason.
9. Learned advocate relied on the decision of the Hon'ble
Apex Court in the case of Rama Krishana Vs. S. Rami Reddy
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(Dead) by his Legal Representatives & Ors. reported in 2008
(5) SCC 535 an submitted that the conduct of the complainant
is of immense significance and therefore, he cannot allow a
case to be remained pending for an indefinite period. Learned
advocate further submits that as the present case is pending
since more than 20 years, and therefore, learned trial Court
has rightly dismissed the complaint for non-prosecution by
exercising the power under Section-256 of the Cr.P.C.
Therefore, the same is required to be confirmed and the
appeal is required to be dismissed.
10. Considering the facts of the case, the provision under
which, the order is passed, is required to be 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
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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."
11. It is true that as per the judgment relied by the learned
advocate for the respondents, the trial cannot be permitted to
continue for indefinite period, but it is also well settled law by
the Hon'ble Supreme Court in the case of The Associated
Cement Co. Ltd vs Keshvanand reported in AIR 1998 SC 596,
wherein it is held that "two constraints are imposed on the
court for exercising the power under the Section-256 of
Cr.P.C. First is, if the court thinks that in a situation it is
proper to adjourn the hearing, then the magistrate shall not
acquit the accused. Second is, when the Magistrate considers
that personal attendance of the complainant is not necessary
on that day, the Magistrate has the power to dispense with his
attendance and proceed with the case. If the situation does
not justify the case being adjourned, the court is free to
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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".
12. Considering the facts of the case, it is found from the
rojkam that after the Covid-19 Lock-down is over, the case
was kept on the board on 21.09.2021 and on the day, when
the impugned order was passed. Even on that day also, the
advocate on record of the accused had given an application
below Exh.44 seeking exemption from remaining present
before the Court, which was granted and therefore, it cannot
be said that the accused was remain present and due to the
absence of the complainant, the matter was not proceeded
further.
13. In the facts and circumstances of the case, this Court is
deem it fit that all the criminal appeals are required to be
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allowed and all the criminal cases are required to be ordered
to be restored to its original files and the impugned judgment
and order of acquittal passed by the learned court below is
required to be quashed and set aside.
14. Resultantly, the appeals succeed. The impugned
judgment and order passed in respective complaints are
hereby quashed and set aside. The criminal cases are remitted
back to the learned trial Court for deciding afresh after
following the due procedure of law and providing proper
opportunity to both the parties, to adduce their evidence.
The amount, which is deposited by the learned advocate
for the complainant before the Treasury Office of the trial
Court pursuant to the order dated 20.07.2023, be disbursed in
the name of respondent - accused after due verification.
It is needless to clarify that no any unnecessary
adjournment would be sought by any of the parties. Both the
parties would see that the trial is concluded without any
further delay. Record and proceedings be sent back to the
concerned Court forthwith. The trial Court may expedite the
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trial as expeditiously as possible.
(M. K. THAKKER,J)
A. B. VAGHELA
