Gujarat High Court
Divyesh Harishkumar Trivedi vs Bhavesh Jivanlal Kalariya on 27 September, 2024
NEUTRAL CITATION
R/CR.A/1485/2024 ORDER DATED: 27/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1485 of 2024
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DIVYESH HARISHKUMAR TRIVEDI
Versus
BHAVESH JIVANLAL KALARIYA & ANR.
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Appearance:
MR.ADITYA J PANDYA(6991) for the Appellant(s) No. 1
MR DHRUV K DAVE(6928) for the Opponent(s)/Respondent(s) No. 1
NON BAILABLE WARRANT NOT RECEIVED BACK for the
Opponent(s)/Respondent(s) No. 1
MR YUVRAJ BRAHMBHATT, ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 27/09/2024
ORAL ORDER
1. The present appeal is filed by the appellant - original
complainant under Section 378 of the Code of Criminal
Procedure, 1973 (for short "Cr.P.C.") against the judgment and
order of acquittal dated 30/05/2023 passed by the learned 6 th
Additional Judicial Magistrate, First Class, Bharuch (hereinafter
referred to as "the trial court") in Criminal Case No.343 of
2019, whereby, the learned Trial Judge has acquitted the
original accused respondent No.1 herein for the offence
punishable under Section 138 of the Negotiable Instruments
Act, 1881 (for short "the N.I. Act").
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2. Heard learned advocate Mr.Aditya Pandya, appearing on
behalf of the appellant - original complainant, learned
advocate Mr.Dhruv K. Dave, appearing on behalf of the
respondent No.1 - original accused and learned APP Mr.Yuvraj
Brahmbhatt, appearing on behalf of the respondent No.2 -
State of Gujarat.
3. Learned advocate Mr.Pandya has submitted that neither
the appellant nor the advocate engaged to represent his case,
could remain present before the trial court at the time of
hearing of the criminal case and in their absence the trial court
has passed the impugned order of dismissed for default
rejecting the complaint of the present appellant. He has
submitted that the trial court has recorded that the advocate
of the complainant as well as the complainant are not
appearing in the matter since many times and ample
opportunity was given to remain present and the matter is
pending at the stage of service of summons and no efforts are
made to serve the summons, which is contrary to the records
of the case, as the advocate of the complainant was appearing
and representing the complainant and taking steps in
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furtherance of service of summons and then bailable warrants.
He has submitted that thereafter, the advocate of the
complainant was appointed as Defense Counsel and therefore,
the complainant had engaged another advocate who had filed
his appearance on behalf of the complainant and thereafter,
the mother of the complainant was not keeping well and for
that reason, the complainant could not remain present before
the trial court only on three occasions, however, without
considering these aspects, the trial court has rejected the
complaint and acquitted the respondent accused, and
therefore, learned advocate Mr.Pandya has urged that the
present appeal be allowed and the impugned order passed by
the trial court be quashed and set aside.
4. As against that, learned advocate Mr.Dhruv Dave,
appearing on behalf of the respondent accused has submitted
that he was not served with any notice or summons and
therefore, he was not aware about the facts and the impugned
order was passed after considering the relevant material and
therefore, the trial court has rightly passed the order and
therefore, he has urged that the present appeal be dismissed.
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5. On perusal of the record it appears that, since merely
because the appellant - original complainant was unable to
provide details of the unserved respondent accused and not
produced the address of the unserved respondent, the trial
court has passed the impugned order dismissing the complaint
under Section 256 of the Cr.P.C. and thereby acquitted the
respondents accused. In fact, the complainant could not
remain present only on three occasions and in absence of the
complainant or the advocate engaged by the complainant, the
order was passed by the trial court. Considering the judgment
of the Hon'ble Apex Court in case of S. Rama Krishna v. S.
Rami Reddy (Dead) by his LRS and Ors., reported in
[2008] 5 SCC 535, wherein, the Hon'ble Apex Court has
considered that the matter remained pending which is
discussed by the Hon'ble Apex Court.
5.1 At this stage, it would be appropriate to refer to the
decision of the Hon'ble Apex Court in case of State of
Gujarat v. Keshavram Shivram Devmurari reported in
[1977] GLR 524, wherein, this Court has laid down the
principle that while dealing with the complaint the trial court
cannot pass an order under Section 256 of Cr.P.C. The power
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under Sec. 256 of the Criminal Procedure Code has been
conferred on the Magistrate obviously for the ends of justice
and with a view to see that an accused person is not subjected
to any undue harassment. The proviso to Sec. 256 further lays
down that when the complainant is represented by a Pleader
or where the Magistrate is of the opinion that the personal
attendance of the complainant is not necessary, the Magistrate
may dispense with his attendance and proceed with the case.
In the instant case, the situation on the day in question
squarely fall within the proviso and still the learned Magistrate
has acted under the main part of this section, which is really
unfortunate, as the discussion made in paragraph 5 and
thereafter, the Hon'ble Apex Court time and again referred the
aforesaid judgment passed by this Court.
5.2 At this juncture, it would also be appropriate to refer to
the following decisions with regard to Section 256 of Cr.P.C. :
[I] Mohd. Azeem v. A. Venkatesh and Another, [2002] 7 SCC
726, para-3,4;
[II] State of Gujarat v. Pritesh @ Munno Vasudev
Brahmbhatt, [2007] LawSuit [Guj] 673, para-8,9;
[III] Biren Chandulal Mehta v. State of Gujarat and Ors.,
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[2012] LawSuit (Guj) 1229, para-6,7;
[IV] Ankur Arunrao Pawale v. Ritaben Rameshbhai Bhatt and
Another, [2013] 3 GLR 2429, para-14,15,20
"(A) Criminal Procedure Code, 1973 (2 of 1974) - Sec. 256 -
Negotiable Instruments Act, 1881 (26 of 1881) - Sec. 138 -
Dismissal of complaint for non-appearance of complainant -
Complainant present in first sitting, but absent in second
sitting as he went in search of his Advocate - Held,
Magistrate require to adopt pragmatic approach, he should
not exercise power under Sec. 256 in haste - Considering
that reason for absence of complainant proper, dismissal of
complaint unjust - Order by Magistrate, set aside."
[V] Harisinh Bhagwatsinh Sarvaiya v. State of Gujarat and
Ors., [2013] 3 GLR 2723, para-10-15,17,18
"Code of Criminal Procedure, 1973 - Sec 256(1) - Negotiable
Instruments Act, 1881 - Sec 138 - Complaint for dishonour
of cheque dismissed for non-appearance of complaint or his
advocate - Accused acquitted - Appeal - While exercising
powers u/s 256(1) of the code, Magistrate should have
pragmatic approach matter should be heard on merits,
complaint cannot be thrown out for absence of advocate -
Complaint restored seating aside order of Magistrate -
Appeal allowed."
[VI] H.D.F.C. Bank Ltd. through P.O.A. Holder Piyush
Jaswantlal v. State of Gujarat & Anr., [2023] 3 GLR 1877,
para-6,6.1,6.2
6. Considering all these aspects and the submissions
canvassed by both the sides and in view of the decisions as
cited above, that merely because, on one or two occasions, if
the complainant did not remain present, the complaint cannot
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be dismissed. Even in case of Pritesh @ Munno Vasudev
Brahmbhatt (Supra), this Court has observed that for more
than 2 years neither the complainant nor his advocate
remained present and under such circumstances, this Court
has rightly dismissed the appeal preferred by the complainant
under Section 378 of Cr.P.C. but, herein the present case, only
on three occasions, the complainant could not remain present
and in his absence, the trial court has passed the order of
acquittal and therefore, the same deserves to be quashed and
set aside and the matter is required to be remanded back to
the concerned trial court for deciding the issue afresh.
7. In the result, the present appeal is hereby partly
allowed. The judgment and order of acquittal dated
30/05/2023 passed by the learned 6 th Additional Judicial
Magistrate, First Class, Bharuch in Criminal Case No.343 of
2019 is quashed and set aside by imposing cost of Rs.5,000/-.
The matter is remanded back to the concerned trial court for
deciding the issue afresh. Consequently, aforesaid Criminal
Case No.343 of 2019 is ordered to be restored to file and the
trial court to decide and dispose of the same in accordance
with law and on merits at the earliest but not later than 12
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months from today, after giving due opportunities to both the
sides and without being influenced by any orders.
7.1 The appellant is directed to deposit cost of Rs.5,000/-
(Rupees Five Thousand Only) before the Registry of this Court
within a period of 15 days from the date of receipt of this
order, which shall be utilized for Library of the Gujarat High
Court. It is observed that all the concerned parties shall co-
operate before the trial court without seeking unnecessary
adjournments, since the complaint is of the year 2018. It is
open for all the concerned parties to raise all the contentions
available under the law.
7.2 Record and Proceedings, if any, be sent back to the
concerned Trial Court forthwith.
Direct service is permitted.
(HEMANT M. PRACHCHHAK,J)
Dolly
