Research › Search › Judgment

Gujarat High Court · body

2018 DIGILAW 1185 (GUJ)

Khant Pravinsinh Laxmansinh v. State of Gujarat

2018-10-10

SONIA GOKANI

body2018
ORDER : 1. The appellant is the original complainant who has preferred this appeal under section 378 of the Code of Criminal Procedure, 1973, being aggrieved and dissatisfied by the order of the learned Additional Judicial Magistrate First Class, Modasa dated 21.04.2018, whereby the Court has dismissed the complaint for default being Criminal Case No. 1453 of 2016. 2. It is the case of the complainant that he is an agriculturist and due to his acquaintance with the respondent, he had given a hand-loan of Rs.2,00,000/- (rupees two lakh only). Since he was in need of money for personal work. Respondent had ensured to return the said amount within one week, however, he failed to do so, and thereafter, on repeated requests, the respondent gave a cheque of Rs.1,83,000/- drawn on the Sabarkantha District Bank Limited, Sardoi branch, on 14.07.2016. 3. The cheque was dishonoured because of 'insufficient fund' and when the said endorsement was received by the appellant, he issued a demand notice on 25.07.2016 which was never replied to by the respondent. 4. A Criminal Case No. 1453 of 2016 was preferred before the learned Additional Judicial Magistrate First Class, Modasa under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act' for short). It is the say of the appellant that, after much endeavors, when the respondent appeared, he had proposed for amicable settlement and that was the reason why neither the appellant nor his advocate remained present, on the date on which the settlement talks were going on. The Court on the date of dismissal i.e. on 21.04.2018 for want of prosecution, dismissed the case, disregarding the factum of regular presence of the appellant and his learned advocate and also of parties proposing to settle the issues amicably. 5. Aggrieved appellant is before this court, where this court had issued notice for final hearing on 09.08.2018 to the respondents and it has been duly served. However, no one has appeared for and on behalf of the respondent no.2–orig. accused. 6. This court has heard the learned advocate Mr. J.M. Barot appearing for the appellant and learned Additional Public Prosecutor Mr. Hardik Soni who have urged to restore the matter back to the original file. 7. However, no one has appeared for and on behalf of the respondent no.2–orig. accused. 6. This court has heard the learned advocate Mr. J.M. Barot appearing for the appellant and learned Additional Public Prosecutor Mr. Hardik Soni who have urged to restore the matter back to the original file. 7. Section 256 of the Code of Criminal Procedure under Chapter-XX under the heading of 'trial of summons cases by Magistrates' provides that, 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. 7.1. Proviso to this 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. 7.2. Thus, Section 256 empowers the learned Magistrate, if he is of the opinion that on a particular date when otherwise the complainant is not exempted and has chosen not to remain present, he also is empowered to acquit the accused. This court noticed from the Rojnama which was produced, nearly four times, warrant has been issued against the accused. On 05.04.2018 the respondent no.2 accused also moved for cancellation of warrant. The Court after hearing both the sides, has granted him bail on 06.04.2018, and thereafter, on 21.04.2018 the matter came on the board, when the complainant's absence had led the court to order of dismissal for want of prosecution. 8. The chronology of events as reflected from the Rojnama and also from the details which have been provided, the court acceded to the request of interference in the order of dismissal. It is one thing to have power to dismiss for want of prosecution and other thing to be mindful of the chronology of events and more particularly, in a matter where the respondent–accused make all possible efforts not to remain present before the competent court, despite due service of notice/summons, as can be seen in the instant case, from the record. The respondent had chosen not only to allow the legal machinery to take its own course and on repeated issuance of the warrants eventually could lead to procuring his presence. In such view of the matter, one time absence when has led to order of dismissal of the complainant, who relentlessly pursued this matter for all these months and waited for substantive justice to come his way. It is, therefore, in view of the details above, desirable to warrant interference and quash and set aside the order of the learned Additional Judicial Magistrate First Class, Modasa dated 21.04.2018 in Criminal Case No. 1453 of 2016. 9. While remanding the matter and directing the same to be adjudicated on merits, it is being further directed to follow the directions of the Apex Court rendered in the case of M/s. Meters and Instruments Private Limited and Anr. vs. Kanchan Mehta reported in AIR 2017 SC 4594 by the learned Presiding officer, right from the time of issuance of summons/notice. The court may ensure that the matter is expeditiously put an end to. 10. Record and proceedings, if called for and received, the same shall be remitted back to the court concerned, forthwith. For the foregoing reasons, the present appeal is allowed and disposed of, accordingly. Direct service is permitted.