Gujarat High Court
Jaydeeo Vrujlal Deepani vs State Of Gujarat on 18 February, 2025
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R/CR.MA/2849/2025 ORDER DATED: 18/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 2849 of
2025
In F/CRIMINAL APPEAL NO. 4968 of 2025
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JAYDEEO VRUJLAL DEEPANI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR DARSHIT M KAMDAR(11467) for the Applicant(s) No. 1
MR. BHARGAV PANDYA, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 18/02/2025
ORAL ORDER
1. The present leave to appeal is filed by the applicant - original
complainant under Section 419 (4) of the Bharatiya Nagrik Suraksha
Sanhita, 2023 (for short "BNSS") against the judgment and order dated
07.01.2025 passed by the learned Additional Chief Judicial Magistrate,
Rajkot (herein after referred to as the "learned Trial Court") in Criminal
Case No. 9863 of 2023, whereby the learned Trial Court was pleased to
dismiss the case for want of prosecution as the original complainant did
not remain present under the provisions of Section 256(3) of the Cr.P.C.
and the respondent No. 2 - original accused came to be acquitted from the
offence under Section 138 of the Negotiable Instruments Act, 1881
(hereinafter referred to as 'the NI Act").
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1.1 The respondent No 2 is hereinafter referred to as "the accused" as
he stood in the original case for the sake of convenience, clarity and
brevity.
2. The brief facts culled out from the memo of the present application
as well as the record and proceedings are as under:
2.1 The applicant is a partner of Rajendra Industries and engaged in the
business of trading and manufacturing of moulded plastic articles and
plastic products, and the accused is the distributor/wholesale dealer of the
goods of the firm of the applicant. The accused had ordered goods which
were sent by bills dated 23.12.2021, 27.12.2021, 19.01.2022 and
21.01.2022. As per the accounts an amount of ₹22,348/- was outstanding22,348/- was outstanding
towards which the accused gave cheque No. 000050 dated 15.02.2023 of
his account with The Ahmedabad District Co-operative Bank Limited,
Dhandhuka Branch, Dhandhuka which was deposited by the applicant in
his account, with Kotak Mahindra Bank on 18.04.2023 but the cheque
returned unpaid with the endorsement "Funds Insufficient". The
applicant gave the demand statutory notice dated 25.04.2023 to the
accused which was duly served, but the accused did not return the amount
and hence the applicant filed the complaint under Section 138 of the NI
Act before the Court of the Chief Judicial Magistrate, Rajkot.
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2.2 The learned Additional Chief Judicial Magistrate, Rajkot was
pleased to consider the affidavit, documents produced and examination in
chief of the applicant and took cognizance for the offence under Section
138 of the N I Act and passed an order to issue summons to the accused.
The summons was duly served to the accused and the accused appeared
before the learned Trial Court and on the first date the accused bonafidely
deposited the amount of cheque of Rs.22,350/- vide receipt No. 5197666
(C 1161/24-25 dated 26.11.2024) in the court on 26.11.2024. The
applicant filed the affidavit of examination in chief and the matter was
pending for cross examination. The plea of the accused was recorded at
exhibit 08 wherein the accused denied the offence and further stated that
due to a financial crunch, there was a delay in repaying the amount. The
matter was pending for the cross examination of the applicant, and the
applicant was not present on 07.12.2024. The learned advocate for the
applicant gave an exemption application at exhibit 9 and the learned Trial
Court observed that the accused had deposited the entire amount before
the Court, but instead of withdrawing the complaint merely with the
intention of harassing the accused, the application was filed and the
application was allowed on condition that an amount of ₹22,348/- was outstanding2000/- be
deposited as cost with the District Legal Service Authority and the matter
was adjourned to 07.01.2025. On 07.01.2025 the applicant did not remain
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present and his advocate gave an application at exhibit 11 for exhibiting
the documents which was allowed and gave an exemption application at
exhibit 10 and the learned Trial Court was pleased to observe that the
amount ordered as cost was not deposited by the applicant with the
District Legal Services Authority and rejected the exemption application
and was pleased to dismiss the complaint for want of prosecution and
acquit the accused for the offence under Section 138 of the N I Act by an
order below exhibit 1.
3. Being aggrieved and dissatisfied by the impugned order of
dismissal of the complaint and acquittal of the accused, the applicant has
preferred the present application seeking leave to appeal under Section
419(4) of the Bharatiya Nagrik Suraksha Sanhita.
4. Heard learned advocate Mr. Darshit M Kamdar appearing for the
applicant and learned APP Mr. Bhargav Pandya for the respondent -
State.
5. Learned advocate Mr. Darshit M Kamdar for the applicant has
submitted that the learned Trial Court has failed to appreciate the facts
and provisions of law in proper perspective and the impugned judgment
is unsustainable and bad in law. Learned advocate further submits that
due to a bona-fide mistake, the applicant did not remain present on the
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date of passing of the impugned judgment and hence, the leave to appeal
may be granted.
6. Learned APP Mr. Bhargav Pandya for the respondent - State has
submitted that after recording the absence of the applicant the learned
Trial Court has passed the impugned order under Section 256 of the
Cr.P.C. and hence, this Court may not interfere with the impugned order
and has urged this Court to dismiss the present application.
7. As the matter has been dismissed by an order under Section 256 of
the Cr.P.C. it is appropriate to have a glance of Section 256 of Cr.P.C.
which reads as under:-
"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."
8. Considering the arguments of the learned advocate for the
applicant and the paper book submitted on behalf of the applicant it
appears that after filing of the complaint the matter was pending for
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service of summons and the summons was served to the accused for the
date adjourned to 26.11.2023. On the date adjourned the accused
appeared and deposited the amount of cheque with the learned Trial
Court and filed the pursis at exhibit 07 along with a copy of Receipt
Number 5197666 dated 26.11.2023 and the plea of the accused was
recorded at exhibit 8, wherein the accused stated that as he was suffering
from a financial crunch, there was a delay in payment of the amount. As
per the rojkam the case was not withdrawn even though the entire amount
of cheque was deposited in the Court and the matter was adjourned to
07.12.2023 when the applicant did not appear and an application at
exhibit 9 was preferred which was allowed on condition that an amount
of ₹22,348/- was outstanding2000/- was deposited as cost with the District Legal Service
Authority and the matter was adjourned to 07.01.2025. On 07.01.2025
the applicant did not remain present and his advocate gave an application
at exhibit 11 for exhibiting the documents which was allowed and also
gave an exemption application at exhibit 10 and the learned Trial Court
was pleased to observe that the amount ordered to be deposited as cost
with the District Legal Service Authority was not deposited by the
applicant and rejected the exemption application and was pleased to pass
the order below exhibit 1 and observed that the accused has deposited the
amount on the first date that he appeared but the applicant was not
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withdrawing the case with the intention of extracting more amount than
the cheque amount from the accused. The learned Trial Court also
observed that the applicant has not remained present on a single date
since the filing of the case and the matter is delayed due to the absence of
the applicant and even though the amount of cheque is paid the applicant
is not remaining present only with the intention of harassing the accused
and has not taken steps to pay the amount of costs with the District Legal
Services Authority. It appears that the amount of cost has not been paid
even till today by the applicant and the applicant seeks to challenge the
order passed below exhibit 1.
9. At this stage, it is appropriate to take into account the observations
made by the Hon'ble Apex Court in the case of Babu Singh v. State of
U.P reported in (1978) 1 SCC 579 in Para 4 which is reproduced as
under:
"4. ... Our justice system, even in grave cases, suffers from slow motion
syndrome which is lethal to 'fair trial', 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."
9.1 The Apex Court in the case of Ishwarlal Mali Rathod vs. Gopal &
Ors. in Special Leave Petition (Civil) Nos.14117-14118 of 2021 has
observed in Para 5.5 as under:
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"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 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................"
9.2 The Apex Court in the case of S. Rama Krishna vs. S. Rami Reddy
(Dead) by his Lrs. & Ors., reported in (2008) 5 SCC 535 has observed in
Paras 12 to 16 as under:
"12. The learned Magistrate in terms of sub-Section (1) of Section 256
exercises wide jurisdiction. Although an order of acquittal is of immense
significance, there cannot be any doubt or dispute whatsoever that the
discretion in this case had been properly exercised by the learned Magistrate.
13. The provisions of Section 256(1) mandate the Magistrate to acquit the
accused unless for some reason he thinks it proper to adjourn the hearing of
the case. If an exceptional course is to be adopted, it must be spelt out the
discretion conferred upon the learned Magistrate, however, must be exercised
with great care and caution. The conduct of the complainant for the said
purpose is of immense significance. He cannot allow a case to remain pending
for an indefinite period. Appellant had been attending the court for a long
time, except on some dates where when remained absent or was otherwise
represented by his Advocate. He had to remain present in court. He attended
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the court on not less than 20 occasions after the death of the original
complainant. If in the aforementioned situation, the learned Magistrate
exercised his discretionary jurisdiction, the same, in our opinion, should not
have been ordinarily interfered with.
14. The High Court was exercising its jurisdiction under sub-Section (4) of
Section 378 of the Code of Criminal Procedure. The appeal preferred by the
respondents was against a judgment of acquittal. The High Court should have,
therefore, exercised its jurisdiction keeping in view the limited role it had to
play in the matter.
15. The High Court itself had come to the finding that the respondents were
not interested in getting the matter prosecuted. Despite the same, it allowed
their appeal, opining that any lis between the parties should be decided on
merits rather than on technicalities. On what basis such a statement of law was
made is not known. No precedent was cited; no reason has been assigned. The
High Court failed to take into consideration the fact that it was dealing with an
order of acquittal and, thus, the principle of law which was required to be
applied was that, if two views are possible, a judgment of acquittal should not
ordinarily be interfered with.
16. There exists a distinction between a civil case and a criminal case. Speedy
trial is a fundamental right of an accused. The orders passed by the competent
court of law as also the provisions of Code of Criminal Procedure must be
construed having regard to the Constitutional scheme and the legal principles
in mind."
10. Considering the facts and circumstances of the case and
considering the observations made in the decision of the Apex Court in
Ishwarlal Mali Rathod (supra) and S. Rama Krishna (supra) it clearly
transpires that the sole intention of the applicant was to delay the matter
and as observed by the learned trial court to extract more money from the
accused than the amount of cheque. The applicant did not deposit the
amount of cost as per the order of the learned trial court and was only
interested in delaying the matter and was not remaining present and using
dilatory tactics through his advocate. At this juncture it would be fit to re
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produce the observation of the Apex Court in Damodar S Prabhu vs
Saiyed Babulal reported in 2010 (5) SCC 663 wherein in Para 15 the
Apex Court has observed as under :
"15 With regard to the progression of litigation in cheque bouncing cases,
the learned Attorney General has urged this Court to frame guidelines for a
graded scheme of imposing costs on parties who unduly delay compounding
of the offence. It was submitted that the requirement of deposit of the costs
will act as a deterrent for delayed composition, since at present, free and easy
compounding of offences at any stage, however belated, gives an incentive to
the drawer of the cheque to delay settling the cases for years. An application
for compounding made after several years not only results in the system being
burdened but the complainant is also deprived of effective justice. In view of
this submission, we direct that the following guidelines be followed:-
THE GUIDELINES
(i) In the circumstances, it is proposed as follows:-
That directions can be given that the Writ of Summons be suitably modified
making it clear to the accused that he could make an application for
compounding of the offences at the first or second hearing of the case and that
if such an application is made, compounding may be allowed by the court
without imposing any costs on the accused."
11. In light of the above it appears that the summons was issued to the
accused with information that the matter can be compounded at the first
date of hearing as per the guidelines of the Apex Court in Damodar
Prabhu (Supra) and it appears that the accused was ready and willing to
compound the matter as soon as the summons was served, but the
applicant was not ready to compound the case. The learned Trial Court
rightly permitted the accused to deposit the amount of cheque with the
Nazir of the Court and from the order of the learned Trial Court below
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exhibit 1 it transpires that the applicant was not willing to compound the
matter and withdraw the case. The Magistrate Courts today are flooded
with litigations under the N I Act and tireless efforts are being made to
reduce the pendency of compoundable cases through various modes of
settlement like Lok Adalats and Mediation and necessary steps are
required to be taken when litigants try to abuse the process of the Court to
extract more amount than the amount of cheque by keeping the sword of
the pending case hanging on the head of the accused. The learned Trial
Court has recognized the dilatory tactics used on the part of the applicant
for his ultimate goal in pressurising the accused by keeping the lis
pending before the Court, by giving unnecessary adjournment
applications and the learned Trial Court has refused to mechanically grant
the adjournment application and be a willing party to delay the trial.
Such proactive attitude of the trial courts is required to curb delays in the
justice delivery system and ensure speedy justice to the litigants.
Moreover the applicant has not deposited the amount of cost as ordered
by the learned Trial Court with the District Legal Services Authority and
has challenged the order before this Court. In light of the decision of the
Apex Court in S Rama Krishna (Supra) the learned Trial Court has in a
well reasoned order observed the intention of the applicant and this Court
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finds no any illegality, perversity or impropriety in the impugned order of
dismissal of the complaint.
12. Accordingly, the present application seeking leave to file an appeal
as prayed for is declined and the application is dismissed. The order dated
07.01.2025 passed by the learned 11 th Additional Chief Judicial
Magistrate, Rajkot in Criminal Case No. 9863 of 2023 is hereby
confirmed.
(S. V. PINTO,J)
VVM
