Sandeep Rameshchandra Mistry vs Rutwik Manojbhai Kankeshwar
2024 Latest Caselaw 645 Guj

Gujarat High Court

Sandeep Rameshchandra Mistry vs Rutwik Manojbhai Kankeshwar on 24 January, 2024

                                                                                    NEUTRAL CITATION




     R/CR.A/2204/2023                              JUDGMENT DATED: 24/01/2024

                                                                                    undefined




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2204 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE M. K. THAKKER
==========================================================
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 ?

==========================================================
                        SANDEEP RAMESHCHANDRA MISTRY
                                    Versus
                         RUTWIK MANOJBHAI KANKESHWAR
==========================================================
Appearance:
MR NAUMAN S QURESHI(10669) for the Appellant(s) No. 1
MR MOHDDANISH M BAREJIA(10612) for the Opponent(s)/Respondent(s)
No. 1
MS MONALI BHATT APP for the Opponent(s)/Respondent(s) No. 2
==========================================================

 CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                               Date : 24/01/2024

                               ORAL JUDGMENT

1. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973, challenging the judgment and order of acquittal passed by the learned Judge, Additional Small Cause Court, Surat dated 17.06.2023 in Criminal Case No.22999 of 2017 whereby, the respondent - accused came to be acquitted by the learned Court in

NEUTRAL CITATION

R/CR.A/2204/2023 JUDGMENT DATED: 24/01/2024

undefined

exercise of powers under Section 256 of the Code of Criminal Procedure.

2. It is the case of the complainant that there was a family relation between the complainant and the accused and due to the said relation, the amount of Rs.5,00,000/- was lent by the complainant to the accused. To return the said amount, cheque bearing no.721452 dated 12.05.2017 of Rs.5,00,000/- was issued in favour of the complainant, which was dishonoured with the endorsement of "account closed" and, therefore, after following the due procedure under the Negotiable Instruments Act, a private complaint came to be filed. The summons came to be issued by the learned trial Court after recording the verification on 29.09.2017, which was remained unserved on account of having address changed. Thereafter, the matter was adjourned from time to time and fresh summons were issued, however, the same could not be served to the respondent - accused. The complainant and his advocate remained absent on two consecutive dates i.e. on 18.04.2023 and 26.05.2023, therefore, the complaint came to be dismissed by the learned trial Court and the respondent - accused was acquitted from the charge under Section 138 of the Negotiable Instruments Act, which is impugned before this Court.

3. Heard learned advocate Mr.Nauman Qureshi for the appellant, learned advocate Mr.Mohddanish Barejia for the respondent - accused and learned A.P.P. Ms.Monali Bhatt for the respondent - State.

4. Learned advocate Mr.Qureshi submits that there was one F.I.R. registered against the advocate of the complainant i.e. Rushi Pastagia being I-C.R.No.11210015220242 before the D.C.B. police station, Surat wherein, he did not remain present before the learned

NEUTRAL CITATION

R/CR.A/2204/2023 JUDGMENT DATED: 24/01/2024

undefined

trial Court. The learned advocate further submits that after the stay which was granted in the quashing petition on 11.01.2023, the advocate/complainant were remained absent and the date was not communicated to the complainant and the complainant also remained absent and because of that reason, the complaint came to be dismissed. The learned advocate further submits that the address which is stated to have been mentioned in the complaint and the appeal memo is the same, however, the summons could not be served before the learned trial Court but, in the proceedings before this Court, it is served and the respondent - accused appeared through his pleader. The learned advocate further submits that because of not remaining present on two consecutive dates, the complaint came to be dismissed. The learned advocate submits that though the complainant is having a fair case but, because of the absence, he would be suffered as the offence pertaining to the Negotiable Instruments Act and due to time barred litigation, great prejudice would be caused to the complainant in case, the complaint would not be restored to its original file. With the aforesaid submissions, the learned advocate prays that the impugned order be quashed and the complaint be restored to its original file and the same be remitted back to the learned trial Court for deciding it on merits.

5. On the other hand, learned advocate Mr.Barejia submits that for non-service of the summons, the case remained pending for more than five years and, therefore, the learned trial Court had rightly dismissed the complaint on the ground of non-prosecution. The learned advocate submits that it is the duty of the complainant to see that after setting the criminal law in motion, the same be concluded without any delay on his part. The learned advocate submits that the complainant not only able to serve the respondent

- accused but, did not remain present on two consecutive dates

NEUTRAL CITATION

R/CR.A/2204/2023 JUDGMENT DATED: 24/01/2024

undefined

and, therefore, the learned trial Court is justified in passing the impugned order and, therefore, the same deserves to be confirmed and the appeal is required to be dismissed.

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 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

NEUTRAL CITATION

R/CR.A/2204/2023 JUDGMENT DATED: 24/01/2024

undefined

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 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. On perusing the record, it transpires that the address, which is mentioned in the complaint is the same address, which is mentioned in the appeal memo. The summons remained unserved for five years before the learned trial Court and on the same address, the service was completed and the respondent - accused appeared through his pleader before this Court. This shows that the respondent - accused was in the knowledge of the proceedings pending before the Court but somehow, he managed the service of summons. From the record, it transpires that almost on every occasions, the complainant appeared through his advocate. However, for two consecutive dates, he remained absent and for that, the impugned order came to be passed. The principle of natural justice requires that due opportunity is required to be given to the parties to adduce their evidence and the matter is required to be decided on its own merits instead of technical dismissal. The real test is always a good faith and because of the mis-communication on the part of the learned advocate for the complainant and the complainant, the complainant could not remain present but, looking to the scenario of the record, it transpires that the accused not remained present for five years and, therefore, even if the complainant would have remained present, the learned trial Court would not be in a position to proceed further. Therefore, instead of dismissing the complaint, the learned trial Court would have dispensed with the presence of the respondent - accused and could

NEUTRAL CITATION

R/CR.A/2204/2023 JUDGMENT DATED: 24/01/2024

undefined

have proceeded further or adjourned the matter for the next date of hearing.

9. Considering the same, this Court is of the view that the impugned order passed by the learned trial Court requires to be interfered with and the criminal case is required to be remitted back to the learned trial Court for deciding it on merits.

10. At the same time, as the complainant or his advocate remained absent, therefore, appropriate cost is required to be awarded.

11. Resultantly, this appeal is allowed. The impugned judgment and order of acquittal passed by the learned Judge, Additional Small Cause Court, Surat dated 17.06.2023 in Criminal Case No.22999 of 2017 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. The learned advocate is directed to deposit the cost of Rs.20,000/- with the Registry of this Court within a period of two weeks from today. On depositing the same, the Registry is directed to disburse the amount of Rs.15,000/- in favour of the respondent - accused after due verification and the remaining amount of Rs.5,000/- be remitted in the account of Shishu Gruh, Paldi.

12. With the aforesaid direction, this appeal is disposed of.

(M. K. THAKKER,J) Hitesh