Gujarat High Court
Partner Of Jay Plastic Manoj ... vs State Of Gujarat on 3 January, 2024
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R/CR.MA/5634/2023 JUDGMENT DATED: 03/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO.
5634 of 2023
In
R/CRIMINAL APPEAL NO. 781 of 2023
With
R/CRIMINAL APPEAL NO. 781 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law Yes
as to the interpretation of the Constitution of India or
any order made thereunder ?
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PARTNER OF JAY PLASTIC MANOJ GHANSHYAMBHAI SAJNANI
Versus
STATE OF GUJARAT
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Appearance:
MR DHRUV K DAVE(6928) for the Applicant(s) No. 1
MR P P MAJMUDAR(5284) for the Respondent(s) No. 2
MS MONALI BHATT, ADDITIONAL PUBLIC PROSECUTOR for the
Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 03/01/2024
ORAL JUDGMENT
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R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO.
5634 of 2023
As this Court is deciding the main matter on merits, the
leave is granted to prefer an appeal and this application is
disposed of accordingly.
R/CRIMINAL APPEAL NO. 781 of 2023
1. With the consent of parties, matter is taken up for final
hearing. This appeal is filed under Section 378 of the Code of
Criminal Procedure, 1973 challenging the judgment and order
passed by the learned 3rd Additional Chief Judicial Magistrate,
Vadodara below Exh. 1 in Old Criminal Case No.3707 of 2006
which was renumbered as Criminal Case No.41643 of 2006
dated 22.10.2021 dismissing the complaint for non-prosecution
by exercising the powers under Section 256 of the Code of
Criminal Procedure, 1973.
2. It is the case of the complainant that the complainant is
having the factory of manufacturing plastic granules. The
complainant is doing the job work and the accused was visiting
the factory of the complainant for doing the job work of the
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plastic granules. It is the case of the complainant that for the
payment on the job work, cheque bearing Cheque No.656624
dated 13.3.2006 for the amount of Rs.24,080/- and Cheque
No.361506 dated 23.6.2006 for the amount of Rs.20,19,146/-
was issued. On depositing the said cheque with the bank, it was
returned with the endorsement of 'insufficient fund' on
12.9.2006. After following the procedure prescribed under the
Negotiable Instruments Act, 1881, a private complaint was filed
before the competent court being Criminal Case No.41643 of
2006. After recording the verification, the learned trial Court
had issued the process under Section 204 of the Code of
Criminal Procedure, 1973 vide order dated 12.12.2006. The
accused appeared and his plea was recorded on 20.9.2007 and
thereafter further statement was recorded on 20.10.2010. It
was pleaded by the accused that the payment of disputed
cheque has already been made and false case is filed. The
accused was examined and his cross-examination was also
conducted. Thereafter, the application below Exh. 73 was filed
to send the cheque before the handwriting expert for
verification. The said application was allowed on 23.6.2016 with
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condition that the accused would deposit the costs of
Rs.20,000/-. Initially, the specimen was sent below Mark 58/7 to
58/15. Thereafter, the handwriting expert authority wrote a
letter on 23.6.2017 below Exh. 97 informing to send again the
specimen in a proper format. Therefore, the order was passed
below Exh. 100 on 23.10.2019 to send 36 other specimen to the
handwriting expert. Thereafter, the matter was adjourned for 27
times, but the complainant remained failed in appearing before
the court and providing the specimen. It is the further case of
the complainant that the application was filed below Exh. 115 by
the respondent-accused to dismiss the matter on the ground of
non-prosecution on the ground that neither the complainant is
complying with the order passed by the learned trial Court
dated 23.6.2016 and 23.10.2019 nor the complainant is
remaining present. Thereafter, the learned advocate for the
complainant had filed purshis below Exh. 116 stating that he did
not want to continue as an advocate of the complainant and for
that, he had also issued notice to the complainant. It transpires
from the record that the complainant thereafter had engaged
another advocate and the advocate was appeared on 7.10.2021
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and filed Vakalatnama below Exh. 117 and on the day when the
impugned order was passed, neither learned advocate nor
complainant remained present and therefore, the learned trial
Court had dismissed the matter for non-prosecution by
exercising powers under Section 256 of the Code of Criminal
Procedure which is impugned before this Court.
3. Heard learned advocate Mr. Dhruv K. Dave for the
applicant and learned advocate Mr. P.P. Majmudar for the
respondent-accused.
4. Learned advocate Mr. Dave submits that lastly, the
advocate for the complainant remained present on 7.10.2021.
Thereafter, the matter was adjourned on 22.10.2021, however,
on that day, neither the complainant nor his advocate could
remain present. Learned advocate Mr. Dave submits that for the
fault on the part of the advocate in not remaining present, the
litigant should not suffer and as the cases pertaining to the
Negotiable Instruments Act is a time-barred litigation, the
complainant would be left remediless if the impugned order
would not be quashed. By submitting the same, learned
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advocate Mr. Dave prays to quash the impugned order and
further prays to restore the matter to its original file.
5. Learned advocate Mr. Dave further submits that if this
matter would be restored to its original file, then the
complainant would cooperate with the trial and would see to it
that the matter is concluded within a period of three months
without any further delay.
6. On the other hand, learned advocate Mr. P.P. Majmudar
for the respondent-accused submits that though twice order was
passed by the learned trial Court to provide the specimen, the
complainant neither remained present nor provided his
signature. In absence of compliance of the orders, the learned
trial Court had rightly dismissed the complaint by exercising
powers under Section 256 of the Code of Criminal Procedure
and therefore, it was prayed to dismiss the appeal.
7. Having noticed the rival submissions before I proceed
further, it would be useful to notice the provisions of Section
256 of the Code of Criminal Procedure which are reproduced
hereinbelow:
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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 non- appearance of the complainant is
due to his death."
7.1 Requirement under Section 256 of the Code of Criminal
Procedure, 1973 is that:
(I) summons must have been issued to the complainant
(II) the Magistrate should be of opinion that for some
reasons, it is not proper to adjourn the hearing of the case
to some other day, and
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(III) the date on which the order under Section 256 (1) of
the Code of Criminal Procedure, 1973 can be passed is the
day appointed for appearance of the accused or any day
subsequent thereto which the hearing of the case has been
adjourned.
8. On keeping in mind the above provision, now if the records
and proceedings which are part of the appeal is to be examined
then it transpires that the complaint came to be filed on
30.11.2006 and the summons came to be issued vide order
dated 21.12.2006. Accused came to be appeared on 20.9.2007
and the further statement of the accused came to be recorded
on 20.10.2010. In the further statement, accused pleaded that
the cheque amount which is of Rs.24,080/- was already paid to
the complainant, however, false case is filed. Accused had also
prayed to send the disputed cheque to the Forensic Science
Laboratory by filing the separate application below Exh. 73. The
aforesaid application came to be allowed on 23.6.2016 and
order was passed to send the cheque along with specimen of the
complainant to the Forensic Science Laboratory on condition to
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deposit costs of Rs.20,000/-. Thereafter, the communication was
received on 23.6.2017 below Exh. 97 from the Forensic Science
Laboratory to send 36 specimen of the complainant in a proper
format, so that it can compare with the handwriting of the
cheque. Again the order was passed on 23.10.2019 below Exh.
100 directing the complainant to provide the further specimen,
so that it can be sent to handwriting expert. As recorded earlier,
around 27 adjournments were granted to the complainant to
comply with the order dated 23.6.2016 and 23.10.2019,
however, the complainant failed in remaining present before the
learned trial Court and providing the specimen as demanded by
the Forensic Science Laboratory. It transpires that as the
complainant was remaining absent, therefore, the application
below Exh. 115 came to be filed by the respondent-accused
praying to dismiss the complaint on the ground of non-
prosecution or to issue non-bailable warrant against the
complainant. On filing aforesaid application, the complainant
appeared with another advocate and filed its Vakalatnama on
7.10.2021 below Exh. 117. Thereafter, the matter was
adjourned on 22.10.2021. Again neither the complainant nor his
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advocate remained present on 22.10.2017, therefore, the
learned trial Court has passed the impugned order dismissing
the complaint and acquitting the respondent-accused from the
charges.
9. It is true that party having fair case should not suffer
because of his absence, but at the same time, dilatory tactics on
the part of the complainant who set the criminal law in motion
by filing the private complaint should be restricted. An accused
who is forced to attend the court on all posting days can put
harassment by a complainant if he does not turn up to the court
on occasions when his presence is necessary. With a view to
protect to the accused against such tactics of the complainant,
the provision list Section 256 of the Code was added.
9.1 Commenting on the delay in the justice-delivery system,
although in respect of the criminal trial, Krishna Iyer, J. in the
case of Babu Singh v. State of U.P. (1978) 1 SCC 579 has
observed in paragraph 4 as under:-
"4. ... Our justice system, even in grave cases, suffers
from slow motion syndrome which is lethal to 'fair trial',
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whatever the ultimate decision. Speedy justice is
a component of social justice since the community, as a
whole, is concerned in the criminal being condignly and
finally punished within a reasonable time and
the innocent being absolved from the inordinate ordeal
of criminal proceedings."
9.2 Then the Hon'ble Apex Court in the case of Ishwarlal
Mali Rathod vs. Gopal & Ors. in Special Leave Petition
(Civil) Nos.14117-14118 of 2021 observed that:
"5.5 Today the judiciary and the justice delivery
system is facing acute problem of delay which ultimately
affects the right of the litigant to access to justice and
the speedy trial. Arrears are mounting because of such
delay and dilatory tactics and asking repeated
adjournments by the advocates and mechanically and in
routine manner granted by the courts. It cannot be
disputed that due to delay in access to justice and not
getting the timely justice it may shaken the trust and
confidence of the litigants in the justice delivery system.
Many a times, the task of adjournments is used to kill
Justice. Repeated adjournments break the back of the
litigants. The courts are enjoying upon to perform their
duties with the object of strengthening the confidence of
common man in the institution entrusted with the
administration of the justice. Any effort which weakens
the system and shake the faith of the common man in the
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justice dispensation has to be discouraged. Therefore the
courts shall not grant the adjournments in routine
manner and mechanically and shall not be a party to
cause for delay in dispensing the justice. The courts have
to be diligence and take timely action in order to usher
in efficient justice dispensation system and maintain
faith in rule of law. We are also aware that whenever the
trial courts refused to grant unnecessary adjournments
many a times they are accused of being strict and they
may face displeasure of the Bar. However, the judicial
officers shall not worry about that if his conscience is
clear and the judicial officer has to bear in mind his
duties to the litigants who are before the courts and who
have come for justice and for whom Courts are meant
and all efforts shall be made by the courts to provide
timely justice to the litigants. ..."
9.3 The Hon'ble Apex Court in the case of S. Rama Krishna
vs. S. Rami Reddy (Dead) by his Lrs. & Ors. (2008) 5 SCC
535 observed as under:
"A. Criminal Procedure Code, 1973 - Ss. 256(1) and
378(1) - Ingredients of S. 256(1) - Acquittal of accused
on non-appearance of complainant - Exercise of
jurisdiction by Magistrate under S. 256(1) - Scope of -
Conduct of the complainant significant - Interference of
High Court under S. 378(1) in appeal against acquittal of
accused recorded by Magistrate in exercise of discretion
under S. 256(1) whether justified - Complaint filed
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against appellant for dishonour of cheque on 6.6.2001 -
After death of complainant his heirs did not press their
application for substitution - On 14 dates between
18.4.2005 to 23.1.2006 nobody represented the
complainant - accused kept appearing on most dates -
Noticing respondent heirs' failure to attend court for a
long time, Magistrate under S. 256 acquitted the
appellant on 23.1.2006 - High Court in appeal under S.
378(1), despite finding that respondent heirs were not
interested in getting the matter prosecuted, set aside the
order of acquittal on ground that lis between the parties
should be decided on merits and directed that
respondents be given one more opportunity - Held, High
Court in appeal against acquittal erred in interfering
with the discretion exercised by Magistrate under S.
256(1)"
10. In view of the above discussion, the impugned order dated
22.10.2021 is legal and valid order and therefore, it should not
be interfered by this Court when sufficient opportunities were
provided to the complainant to provide his specimen and to
proceed with the matter. Thus, no illegality and irregularity has
been committed by the learned Magistrate in passing the
impugned order.
11. For the aforesaid reasons, the present appeal is dismissed.
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Record & Proceedings be sent back to the concerned court
forthwith.
Sd/-
(M. K. THAKKER,J)
Bharat
