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2013 DIGILAW 243 (GUJ)

Access & Associates v. State of Gujarat

2013-04-25

A.J.DESAI

body2013
JUDGMENT : A.J. Desai, J. Rule. Mr.K.P. Raval, learned Additional Public Prosecutor waives service of notice of Rule on behalf of respondent No.1 and Mr.Hardik Dave, learned advocate waives service of notice of Rule on behalf of respondent No.2. 2. By way of the present application u/s. 397 read with Section 401 and 482 of the Code of Criminal Procedure,1973, the applicants herein - original accused, have challenged the judgement and order dated 18/07/2012 passed by learned Additional Sessions Judge, Court No.19, City Sessions Court, Ahmedabad in Criminal Appeal No.80 of 2011, mainly on the ground that learned Appellate Court while allowing the appeal filed by the appellant, ought not to have remanded the case to the learned Metropolitan Magistrate with a direction to decide the complaint afresh but ought to have held that the Magistrate had no power u/s.204(4) of the Code of Criminal Procedure, to recall his order of dismissal of the complaint, when the complaint was dismissed for non-prosecution. 3. Brief facts, emerge from the record of the case, are as under: That the respondent No.2 herein - original complainant, lodged a complaint for the offence punishable u/s.138 of the Negotiable Instruments Act in the Court of learned Metropolitan Magistrate (Negotiable Instrument Act), Court No.6, Ahmedabad against the present applicant and alleged that the applicant - original accused had committed an offence punishable under the Negotiable Instruments Act since cheques issued to the complainant towards legal debts were not honoured. The said complaint was registered as Criminal Case No.1458 of 2009, which was registered on 02/05/2009. Bailable warrant to the tune of Rs. 5,000/- was issued against the present applicant on 02/05/2009 itself, which was made returnable on 30/05/2009. On 30/05/2009 pursuant to the bailable warrant, the applicant - accused remained present before the court of learned Metropolitan Magistrate. Since a copy of the complaint was not served to the original accused, the matter was adjourned to 19/06/2009. On 19/06/2009, neither the complainant nor his lawyer remained present before the Court in earlier hours of the day and, therefore, learned Magistrate dismissed the complaint under the provision of Section 204(4) of the Code of Criminal Procedure,1973. Having come to know about dismissal of the complaint, an application was submitted by the complainant on the same day i.e. on 19/06/2009 itself in the Court of learned Metropolitan Magistrate with a prayer to restore the said complaint. Having come to know about dismissal of the complaint, an application was submitted by the complainant on the same day i.e. on 19/06/2009 itself in the Court of learned Metropolitan Magistrate with a prayer to restore the said complaint. Since the accused was not present, a Notice was issued to the original accused, which was made returnable on 22/07/2009. On 22/07/2009, copy of restoration application was handed over to the original accused and the matter was kept for hearing on 05/09/2009. On 05/09/2009, neither original accused remained present before the learned Metropolitan Magistrate nor any lawyer defended the application, which was filed by the original complainant to restore his complaint. The matter was heard and was kept for orders on 30/09/2009. On 30/09/2009, in presence of the original accused, the application submitted by the original complainant for restoring his complaint, was allowed and the complaint was restored and summon was issued against the original accused and the matter was fixed for further hearing on 22/12/2009. Thereafter, the matter was proceeded further from 22/12/2009 onwards and the complainant was examined. Though the accused was granted sufficient time to cross- examine the complainant, the same was not undertaken either by the accused himself or through his lawyer. Therefore, stage of cross-examination of the complainant was closed by the learned Magistrate. Further statement of the original applicant was recorded u/s.313 of the Code of Criminal Procedure. After considering the depositions as well as documentary evidence on record, learned Metropolitan Magistrate, Negotiable Instruments Act, Court No.6, Ahmedabad came to the conclusion that the original accused was guilty for the offence punishable u/s.138 of the Negotiable Instrument Act and convicted the original accused and sentenced to undergo simple imprisonment of 1 year and also directed the original accused to pay compensation to the tune of Rs. 2,68,000/- to the original complainant and in default, to undergo simple imprisonment of 4 months. 4. Being aggrieved by and dissatisfied with the judgement and order dated 04/02/2011 passed by learned Metropolitan Magistrate, the applicant herein - original accused has challenged the same by filing Criminal Appeal No.80 of 2011 in the Court of learned Additional Sessions Judge, Ahmedabad. 2,68,000/- to the original complainant and in default, to undergo simple imprisonment of 4 months. 4. Being aggrieved by and dissatisfied with the judgement and order dated 04/02/2011 passed by learned Metropolitan Magistrate, the applicant herein - original accused has challenged the same by filing Criminal Appeal No.80 of 2011 in the Court of learned Additional Sessions Judge, Ahmedabad. Learned Additional Sessions Judge, Ahmedabad accepted the Criminal Appeal filed by the original accused only on the ground that the original accused had no sufficient opportunity to cross-examine the complainant and quashed and set aside the judgement and order passed by learned Metropolitan Magistrate, by which, the original accused was convicted and sentenced, as stated hereinabove. By judgement and order dated 18/06/2012, learned Additional Sessions Judge, City Civil Court, Ahmedabad remanded the case to the learned Metropolitan Magistrate and directed the learned Metropolitan Magistrate to decide the case only after giving an opportunity of being heard to both the sides. Hence, the present revision application. 5. Mr.Bhadrish Raju, learned advocate appearing on behalf of the applicant - original accused has submitted that learned Magistrate has no inherent power to recall his order and restore a complaint on record, if the complaint is dismissed on the ground, as provided u/s.204(4) of the Code of Criminal Procedure. In support of his case, he has relied upon the judgement delivered by Honble Apex Court in the case of Major General A.S.Gauraya and another v. S.N.Thakur and another reported in AIR 1986 SC 1440 . He has submitted that learned Magistrate ought not to have restored the complaint as learned Magistrate has no inherent power under any of the provisions of the Code of Criminal Procedure. Learned Magistrate ought to have dismissed the application filed by the original complainant to restore his complaint, which was dismissed on the ground, as provided u/s.204(4) of the Code of Criminal Procedure. 6. On the other hand, Mr.Hardik Dave, learned advocate appearing on behalf of respondent No.2 herein - original complainant, has submitted that the present revision application has been filed with an ulterior motive and is at very belated stage. 6. On the other hand, Mr.Hardik Dave, learned advocate appearing on behalf of respondent No.2 herein - original complainant, has submitted that the present revision application has been filed with an ulterior motive and is at very belated stage. It is submitted that though the Appellate Court has quashed and set aside the judgement and order of the learned Metropolitan Magistrate, by which, the original accused has been convicted and sentenced and when the learned Appellate Court has directed to decide the case afresh, after giving sufficient opportunity to all the parties, there was no need to file the present revision application before this Court on very technical ground. It is submitted that when the restoration application was filed and when the learned Magistrate has issued show cause notice, the accused did not filed any counter to the same and never raised any objection about maintainability of restoration application way back in July,2009. Even when the restoration application was heard, in fact, any objection has not been raised by the accused about maintainability of such application, which was filed by the original complainant on the same day, on which the complaint was dismissed. It is submitted that on 19/06/2009, learned advocate appearing on behalf of the original complainant could not remained present before the Court in earlier hours of the day and meanwhile the complaint was dismissed by learned Magistrate. However, having come to know about dismissal of the complaint, restoration application was submitted by the original complainant explaining the reasons for not remaining present at 11:00 a.m. on the same day. When the application was given on 19/06/2009, learned Magistrate called upon the accused person to show cause as to why the application should not be restored and sufficient time was given to the accused to reply the same and, therefore, the matter was kept for hearing on 30/09/2009. The accused did not objected and, therefore, on 30/09/2009, the application for restoration was accepted and complaint was restored and summon was issued against the original accused. It is submitted that even during the hearing of the trial and during arguments of the case, the accused did not take such objection with regard to the order passed by learned Magistrate on 30/09/2009, by which, the complaint was restored by the learned Magistrate. It is submitted that even during the hearing of the trial and during arguments of the case, the accused did not take such objection with regard to the order passed by learned Magistrate on 30/09/2009, by which, the complaint was restored by the learned Magistrate. In support of his submission, he has relied upon the decision rendered by Honble Apex Court in the case of Punjab State Warewhousing Corporation Faridkot v. M/s. Sh.Durga Ji Traders and others. reported in AIR 2012 SC 700 and submitted that even the complaint is dismissed on technical ground, inherent power may be exercised by the Court to prevent miscarriage of justice and to prevent abuse of process of law. By relying upon the above judgement, he has submitted that conduct of the original accused is required to be looked into. The original accused never raised such technical objection, even though he was heard by learned Magistrate when the complaint was restored by the said Magistrate. He further submitted that when entire complaint is going to be decided afresh, it would be a futile exercise to file a new complaint for the same transaction. Therefore, he has submitted that considering overall facts and circumstances of the case, the Court may use his inherent powers u/s.482 of the Code, by rejecting the present revision application, in which, technical ground has been raised by the original accused, after a long period and at belated stage. 7. I have heard learned advocates appearing on behalf of the respective parties. None disputed facts are that initially pursuant to the Bailable warrant, the accused remained present before the Court on 30/05/2009. Since a copy of the complaint was not served to the original accused, the matter was adjourned to 19/06/2009. On 19/06/2009, in earlier hours of the day, neither the complainant nor his lawyer could remained present before the Court and, therefore, the complaint was dismissed for non-prosecution on the ground, as provided u/s.204(4) of the Code. It is also undisputed that immediately on the same day at 3:00 p.m., the complainant has preferred application, Exh.3 to restore the complaint, in which, he has sufficiently explained the reason for not remaining present in the earlier hours of the day. The said application was not objected by original accused by filing any counter to the same, though the learned Magistrate had given sufficient opportunity. The said application was not objected by original accused by filing any counter to the same, though the learned Magistrate had given sufficient opportunity. It is also not in dispute that till end of the trial, original accused has not raised such objection but raised such objection only after his conviction and sentence for the said offence. Even before learned Appellate Court, main contention raised by the original accused was of not giving sufficient opportunity to cross-examine the complainant. Considering the overall peculiar facts and circumstances of the case and combine reading of the decisions rendered by the Honble Apex Court in the cases of Major General A.S.Gauraya and another (supra) as well as Punjab State Warehousing Corporation Faridkot (supra), I am of the opinion that it is a fit case that the Court would like to exercise his powers u/s.397, 401 read with 482 of the Code of Criminal Procedure, to prevent miscarriage of justice. When the technical objection has been raised at very belated stage, I would like to use my discretionary power u/s.482 of the Code of Criminal Procedure, 1973 by not entertaining such technical objections, which were raised in the present revision application. 8. In the case of Punjab State Warehousing Corporation Faridkot (supra), Honble Apex Court in Paragraph Nos.8 & 9, held as under: "8. It is trite law that the inherent power of the High Court ought to be exercised to prevent miscarriage of justice or to prevent the abuse of the process of the Court or to otherwise secure the ends of justice. The Court possesses wide discretionary powers under the section to secure these ends. In this behalf it would be profitable to refer to the decision of this Court in Jeffrey J. Diermeier & Anr. v. State of West Bengal & Anr. wherein one of us (D.K.Jain, J.) speaking for the Bench, explained the scope and ambit of inherent powers of the High Court under Section 482 of the Code as follows: "20. ........... The Section itself envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of Court; and (iii) to otherwise secure the ends of justice. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but it is not unlimited. It has to be exercised sparingly carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice. ... .... .... 22. In Dinesh Dutt Joshi v. State of Rajasthan, (2001)8 SCC 570 : 2001 AIR SCW 4068., while dealing with the inherent powers of the High Court, this Court has observed thus (SCC p.573, para 6): "6. ...The principle embodied in the section is based upon the maxim: quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest i.e. when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. The section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the section. As lacunae are sometimes found in procedural law, the section has been embodied to cover such lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this section are, however, required to be reserved, as far as possible, for extraordinary cases." 9. Bearing in mind the afore-stated legal position in regard to the scope and width of the power of the High Court under Section 482 of the Code, we are of the opinion that the impugned decision is clearly indefensible. As noted above, the High Court has rejected the petition under Section 482 of the Code on the ground of availability of an alternative remedy without considering the seriousness of the nature of the offences and the fact that the Trial Court had dismissed the complaint on a hyper-technical ground viz. since the complainant had been appearing in person, despite order dated 16th April,1999, exempting him from personal appearance, the said exemption order became redundant and the complainant should have sought a fresh exemption from personal appearance. since the complainant had been appearing in person, despite order dated 16th April,1999, exempting him from personal appearance, the said exemption order became redundant and the complainant should have sought a fresh exemption from personal appearance. We feel that such a view defies any logic. An order of exemption from personal appearance continues to be in force till it is revoked or recalled. We are convinced that in the instant case, rejection of appellants petition under section 482 of the Code has resulted in miscarriage of justice. Availability of an alternative remedy of filing an appeal is not an absolute bar in entertaining a petition under Section 482 of the Code. As aforesaid, one of the circumstances envisaged in the said Section, for exercise of jurisdiction by the High Court is to secure the ends of justice. Undoubtedly, the Trial Court had dismissed the complaint on a technical ground and, therefore, interests of justice required the High Court to exercise its jurisdiction to set aside such an order so that the Trial Court could proceed with the trial on merits." 9. Facts of the present case as well as facts of the of Punjab State Warehousing Corporation Faridkot (supra), are similar in nature. In the case of Punjab State Warehousing Corporation Faridkot (supra), it has been held that High Court can certainly exercise his inherent powers, without being influenced by technical ground. Hence, the present application is dismissed. Rule is discharged.