Gujarat High Court
Sangeeta Atul Srivastava vs State Of Gujarat on 27 September, 2024
NEUTRAL CITATION
R/CR.A/1828/2024 ORDER DATED: 27/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1828 of 2024
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SANGEETA ATUL SRIVASTAVA
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR KRUNAL G PATEL(8525) for the Appellant(s) No. 1
MR P P MAJMUDAR(5284) for the Opponent(s)/Respondent(s) No. 2,3
MR YUVRAJ BRAHMBHATT, ADDL. PUBLIC PROSECUTOR for the
Opponent(s)/Respondent(s) No. 1
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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 31/03/2023 passed by the learned 37 th
Additional Chief Judicial Magistrate, Vadodara (hereinafter
referred to as "the trial court") in Criminal Case No.17255 of
2021, whereby, the learned Trial Judge has acquitted the
original accused respondent Nos.2 and 3 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.Krunal G. Patel, appearing on
behalf of the appellant - original complainant, learned APP
Mr.Yuvraj Brahmbhatt, appearing on behalf of the respondent
No.1 - State of Gujarat and learned advocate Mr.P.P.
Majmudar, appearing on behalf of the respondent Nos.2 and 3
- original accused.
3. Learned advocate Mr.Patel has submitted that neither the
appellant nor the advocate engaged to represent her 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 from
26/05/2022 to 31/03/2023, the matter was kept pending for
cross-examination of the complainant. He has further
submitted that the appellant is residing in Abu Dhabi alongwith
her husband and therefore, it was not possible for the
appellant to remain present at that time. He has submitted
that the appellant and her advocate were under banofide
impression that the proceedings before the trial court itself had
been stayed by this Court vide order dated 18/01/2022 passed
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by this Court is Special Criminal Application (For Quashing)
No.408 of 2022 and therefore, the appellant could not appear
before the trial court for further proceedings either by herself
or through the counsel and therefore, he 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, the learned advocate Mr.Majmudar,
appearing on behalf of the respondents accused, has
submitted that against the very criminal proceedings, the
respondents had filed quashing petition before this Court being
Special Criminal Application (For Quashing) No.408 of 2022,
wherein, this Court had granted interim relief in favour of the
present respondents by staying the further proceedings of the
criminal case on condition to pay interim compensation of 10%
of the disputed cheque amount to the present appellant. He
has further submitted that since the criminal case came to be
dismissed by the trial court under Section 256 of Cr.P.C., the
said quashing petition came to be withdraw by the
respondents accused vide order dated 15/03/2024, wherein,
this court had granted liberty to revive the petition in case of
any difficulty and therefore, he has urged that the present
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appeal be dismissed.
5. It appears from the record that the complainant could not
remain present before the trial court only on four occasions
and therefore, the complaint came to be dismissed by the trial
court and the trial court has also recorded that on the date on
which the matter was listed, neither the complainant nor the
representative of the complainant remained present before the
court and therefore, the complaint was dismissed and the
order was passed under Section 256 of the Cr.P.C. and thereby
acquitted the respondents accused. In fact, the complaint was
filed in the year 2021 only and the impugned order was passed
on 31/03/2023 and therefore, in absence of the complainant or
the advocate engaged by the complainant, the order was
passed by the trial 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 four occasions, the learned advocate representing the
complainant did 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
31/03/2023 passed by the learned 37 th Additional Chief Judicial
Magistrate, Vadodara in Criminal Case No.17255 of 2021 is
quashed and set aside. The matter is remanded back to the
concerned trial court for deciding the issue afresh.
Consequently, aforesaid Criminal Case No.17255 of 2021 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
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the earliest but not later than 12 months from today, after
giving due opportunities to both the sides and without being
influenced by any orders and without prejudice to the rights
and contentions of the concerned parties.
7.1 It is observed that, since only because of the dismissal of
the complaint, the quashing petition preferred by the
respondents was withdrawn with a liberty to revive the same,
it is open for the respondents to move appropriate application
before appropriate Bench for revival of the said quashing
petition. Learned advocate Mr.Majmudar has urged that now
since the present appeal is allowed and the matter is
remanded back, learned advocate Mr.Patel shall not raise any
objections with regard to revival of the quashing petition
before this Court, to which learned advocate Mr.Patel agrees.
7.2 Record and Proceedings, if any, be sent back to the
concerned Trial Court forthwith.
(HEMANT M. PRACHCHHAK,J)
Dolly
