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2013 DIGILAW 252 (GUJ)

ANKUR ARUNRAO PAWALE v. RITABEN RAMESHBHAI BHATT

2013-05-02

ABHILASHA KUMARI

body2013
JUDGMENT 1. The present appeal under Section 378(4) of the Code of Criminal Procedure, 1973 (‘the Code’ for short) has been preferred, challenging the judgment and order dated 06.08.2012, passed by the learned Judicial Magistrate, First Class, Court No.1, Vadodara, in Criminal Case No.4708 of 2009, whereby the complaint of the appellant (original complainant) under Section 138 of the Negotiable Instruments Act, 1881, has been dismissed for default and respondent-accused No.1, has been acquitted. 2. The brief facts of the complaint are that the appellant is a businessman from Vadodara and respondent No.1-accused is the wife of his friend. Because of cordial relations between the appellant and the husband of respondent No.1, an amount of Rs.5,00,000/-was borrowed by respondent No.1 from the appellant. Respondent No.1 issued a cheque dated 18.05.2009 for an amount of Rs.5,00,000/-, bearing No.090034, drawn on Indian Overseas Bank, Kalali Branch, Vadodara, against the amount borrowed by her with an assurance that it would be honoured as and when presented. The appellant presented the cheque to the Bank of Baroda, Laheripura Branch, New Road, Vadodara, on 20th June, 2009. The cheque came to be dishonoured by the Bank of respondent No.1, which was communicated to the appellant vide memo dated 22.06.2009, with an endorsement “Today’s opening balance insufficient”. The appellant issued a statutory demand notice to respondent No.1 on 18.07.2009, which was received by respondent No.1 on 18th July, 2009. Respondent No.1 failed to comply with the demand or reply to the notice within the period of time specified by the provisions of the Negotiable Instruments Act, 1881. The appellant, therefore, filed the above-mentioned criminal case before the learned Magistrate. 3. The plea under Section 251 of the Code was recorded wherein respondent No.1-accused claimed to be tried. The trial commenced and the appellant was examined and relevant documents were exhibited. Upon completion of the Examination-in-Chief, in the first sitting of the Court on 06.08.2012, the matter was kept for Cross-Examination in the second sitting. Both the complainant and his advocate were present in the first sitting on that day. However, in the second sitting, the appellant was present but his advocate was not present. The learned Magistrate, therefore, instructed the appellant to call his advocate. The appellant went to call the advocate but he was not found in the Court premises. 4. Both the complainant and his advocate were present in the first sitting on that day. However, in the second sitting, the appellant was present but his advocate was not present. The learned Magistrate, therefore, instructed the appellant to call his advocate. The appellant went to call the advocate but he was not found in the Court premises. 4. In the above circumstances, the learned Magistrate has passed the impugned order dated 06.08.2012, giving rise to the present appeal. 5. Mr. Hardik J. Jani, learned advocate for Mr. A.Y. Kogje, learned counsel for the appellant, submits that the learned Magistrate has wrongly observed in the impugned order, that the intention of the appellant is to prolong the case. It ought to have been noted by the learned Magistrate that both the appellant and his advocate were present before the Court during the first sitting. It is only in the second sitting that the learned advocate for the appellant was not present. The appellant has been present throughout the day, except for the period during which he had gone to call his advocate in the second sitting. It is submitted that the appellant has a good prima-facie case which ought to have been decided on merits, instead of which the learned Judge has dismissed the complaint for default and acquitted the accused. It is further submitted that on 06.08.2012, the appellant had stepped into the witness box and his examination-in-chief had been concluded in the first sitting. The matter was kept in the second sitting for Cross- Examination, which shows that the appellant had no intention to prolong the case. It is only on the ground that the learned advocate for the appellant was not present that the learned Magistrate has passed the impugned order, which would cause great hardship and prejudice to the appellant. 6. Learned counsel for the appellant has placed reliance upon a judgment of the Supreme Court in the case of Mohd. Azeem Vs. A. Venkatesh and another reported in (2002)7 SCC 726 , and a judgment of this Court in the case of Ratanlal Gulabchand Gupta Vs. Sahara Sev Gruh Udyog Bhandar and Ors. reported in 2001(4) GLR 2987, in support of the above submissions. 7. It is further submitted that the appellant cannot be penalized for the negligence of his advocate, especially when he, himself, was present throughout. Sahara Sev Gruh Udyog Bhandar and Ors. reported in 2001(4) GLR 2987, in support of the above submissions. 7. It is further submitted that the appellant cannot be penalized for the negligence of his advocate, especially when he, himself, was present throughout. On the above grounds, it is urged that the impugned order may be quashed and set aside and the appeal allowed. 8. Mr. Vimal A. Purohit, learned advocate for respondent No.1 has opposed the submissions advanced on behalf of the appellant. He has submitted that as per the provisions of Section 256 of the Code, the learned Magistrate has not committed any error in passing the order dated 06.08.2012, dismissing the complaint and acquitting respondent No.1. 9. Mr. H.K. Patel, learned Additional Public Prosecutor for respondent No.2-State of Gujarat, has submitted that as the matter is primarily between the appellant and respondent No.1, this Court may pass an appropriate order. 10. This Court has heard learned counsel for the respective parties and perused the material on record. 11. A perusal of the impugned order dated 06.08.2012, passed by the learned Magistrate, reveals that the provision of law under which power is exercised has not been reflected. However, as the power to acquit the accused for non-appearance of the appellant during the trial of a summons case flows from Section 256 of the Code, it would have to be understood that the impugned order has been passed under the said provision of law. 12. At this juncture, it would be fruitful to refer to Section 256 of the Code, which reads as below: “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 hereinabove 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.” (emphasis supplied) 13. Examining the facts of the present case in light of the above provision of law, it is seen that Section 256(1) of the Code speaks of the non-appearance of the complainant and not of his learned advocate. In the present case, the appellant/ complainant was present during the first Session, as well as the second Session of the Court. The learned advocate for the appellant was present during the first Session, but failed to appear during the second Session. The appellant, upon instructions from the learned Magistrate, went to call his advocate. It is for this purpose that he had left the Court. This has led the Court to note, in the impugned order, that neither the appellant nor his learned advocate are present in the second sitting. It is recorded in the impugned order that the appellant did not return till 5:45 PM, therefore, the learned Magistrate proceeded to dismiss the complaint for default and acquit respondent No.1. 14. The provisions of Section 256(1) of the Code empower the learned Magistrate to adjourn the hearing of the case to some other day, if he thinks it proper to do so, for some reason. This course could have been adopted by the learned Magistrate in the present case, especially as the appellant was present in both the sittings and his absence in the second sitting was only due to the fact that he went to look for his learned advocate. 15. In the considered view of this Court, it appears that the learned Magistrate has adopted a highly technical and unjust approach while passing the impugned order, especially as it is clear that the appellant was present in the first and second sittings of the Court, and his advocate was present in the first sitting. It is not as though both the appellant and his lawyer were absent throughout the hearing on 06.08.2012. 16. In the case of Mohd. Azeem Vs. A. Venkatesh and another (supra), the Supreme Court has held as below: “3. From the contents of the impugned order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. 16. In the case of Mohd. Azeem Vs. A. Venkatesh and another (supra), the Supreme Court has held as below: “3. From the contents of the impugned order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. The learned Judge of the High Court observes that even on earlier dates in the course of trial, the complainant failed to examine the witnesses. But that could not be a ground to dismiss his complaint for his appearance (sic absence) on one single day. The cause shown by the complainant of his absence that he had wrongly noted the date, has not been disbelieved. It should have been held to be a valid ground for restoration of the complaint. 4. In our opinion, the learned Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant.” (emphasis supplied) 17. In the case of Ratanlal Gulabchand Gupta Vs. Sahara Sev Gruh Udyog Bhandar and Ors. (supra), this Court has held that: * * * * “In such matters, the approach of the Courts should have been pragmatic and not pedantic. If the matters are decided by use of the power to dismiss the matter for default, it does not give a good name to the institution. Where the litigants approach the Court for redressal of grievances, the cases are to be decided on merits with a judicial approach rather than the Courts exercising power to dismiss the matter for default.” (emphasis supplied) 18. In the case of State of Gujarat Vs. Keshavram Shivram Devmurari and Anr. reported in 1977(18) GLR 524, this Court has held as under: “5. Under Sec.256 of the Code the Magistrate has no doubt power to acquit the accused if the complainant does not appear on the day appointed for the appearance of the accused or any day subsequent thereto. This power 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. This power 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. By way of abundant caution, the very section further provides that it is not obligatory on the part of the Magistrate to dismiss the complaint and he has been clothed with the power to adjourn the hearing of the case to some other day. The proviso annexed to this section further makes the position crystal clear. It lays down that where the complainant is represented by a pleader 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. The situation as was before the learned Magistrate on the day in question squarely fall within the proviso and still the learned Magistrate has acted under the main part of this section. This is really unfortunate and it is hoped that repetition of such instances would not be there in future in the court of this learned Magistrate or in the court of any other Magistrate. A copy of this judgment is directed to be circulated to all the Magistrates in the State.” (emphasis supplied) 19. Keeping in view the principles of law enunciated by the Supreme Court and this Court in the above quoted judgments, it certainly does appear that the learned Magistrate has erred in hastily exercising the power under Section 256(1) of the Code, even when the appellant was present. 20. The appellant had engaged an advocate to conduct the matter on his behalf. The said advocate was present in the first sitting. If there was any default in appearance by the advocate, in the second sitting, it would be highly unjust and unfair to penalise the appellant. Though the learned Magistrate is vested with power to dismiss the complaint and acquit the accused, such power ought to have been exercised pragmatically and a reasonable and justice-oriented approach, ought to have been adopted. The haste shown by the learned Magistrate in dismissing the complaint has evidently resulted in a miscarriage of justice. 21. The learned Magistrate has noted in the impugned order that the appellant was not present in the second sitting, and did not appear till 5:45 PM. The haste shown by the learned Magistrate in dismissing the complaint has evidently resulted in a miscarriage of justice. 21. The learned Magistrate has noted in the impugned order that the appellant was not present in the second sitting, and did not appear till 5:45 PM. When the appellant had gone in search of his advocate, it was not possible for him to remain present in the second sitting. This was in the knowledge of the learned Magistrate, as is clear from the impugned order. The matter could have been adjourned to another day, instead of which the impugned order has been passed. Such an order cannot be sustained in law. 22. For the reasons recorded in the judgment, the appeal is allowed. The impugned order dated 06.08.2012 passed by the learned Judicial Magistrate, First Class, Court No.1, Vadodara, in Criminal Case No.4708 of 2009, is quashed and set aside. The learned Magistrate is directed to restore the complaint to its original status on file and proceed with the trial, in accordance with law. Needless to state, this Court has not entered into the merits of the case. Appeal allowed.