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Gujarat High Court · body

2018 DIGILAW 405 (GUJ)

Patel Rajendrakumar Ambalal v. State of Gujarat

2018-02-05

SONIA GOKANI

body2018
JUDGMENT : 1. With the consent of the learned Counsels on both the sides, this matter is taken-up for final hearing, at the admission stage, itself. 2. This is an appeal arising out of the judgment and Dated: 10.08.2017, passed by the learned Addl. Chief Judicial Magistrate, First, Class, Vijapur (‘the trial Court’ for short), below Exhibit-1 in Criminal Case No. 892 of 2015, whereby, it acquitted opponent No.2-original accused for want of prosecution, in the matter under Section 138 of the Negotiable Instruments Act, 1881 (in brief, ‘NI Act’). 3. It is the case of the appellant-original complainant that an amount of Rs.6.50/- lakh had been advanced by the present appellant to Respondent No.2-original accused and for repaying the said amount, the accused had issued a cheque bearing No. 274399, drawn on UCO Bank, Vijapur, Dated: 15.05.2015, in favour of the present appellant on the very same day. When the appellant deposited the said cheque, it returned with the endorsement, “Insufficient Funds”. Therefore, the complainant issued a notice, under Section 138 of the NI Act, dated 20.06.2015 on Respondent No.2 and the same has not been answered, till date. The complainant, therefore, lodged the aforesaid complaint before the trial Court on 07.08.2015, where, the Court dismissed the said complaint on 10.08.2017 for want of prosecution. 4. Heard learned Counsels on both the sides and perused the material on record. From a perusal of the photocopies of Rojnama of Criminal Case No. 892 of 2015, which is brought on record, it emerges that the summons was duly served on Respondent No.2-the accused on 15.10.2015 and the learned Advocate for Respondent No.2 remained present before the trial Court. 4(a) On 31.12.2015, the appellant-complainant remained present, whereas, Respondent No.2-the accused was not present. 4(b) It is not emerging clearly, as to who was present and who was absent on 12.02.2015. 4(c) On 11.03.2016, an application was tendered on the part of the appellant-original complainant for adjournment and the matter was scheduled for hearing on 23.03.2016. 4(d) On 23.03.2016, Respondent No.2- accused remained absent and an application for adjournment was tendered on his behalf, which came to be accepted and the matter was adjourned to 19.05.2016. 4(e) On 19.05.2016, the appellant-complainant and his advocate both remained absent and the matter was adjourned to 02.06.2016. 4(d) On 23.03.2016, Respondent No.2- accused remained absent and an application for adjournment was tendered on his behalf, which came to be accepted and the matter was adjourned to 19.05.2016. 4(e) On 19.05.2016, the appellant-complainant and his advocate both remained absent and the matter was adjourned to 02.06.2016. On 02.06.2016, Respondent No.2-accused remained present, however, learned Advocate appearing on his behalf was absent, whereas, the appellant-complainant remained absent and his learned Advocate remained present. 4(f) On 02.06.2016, the adjournment was granted on the condition that the appellant- complainant shall lead the evidence on the next date, i.e. on 14.06.2016. 4(g) On 14.06.2016, the accused remained present, whereas, the appellant-complainant remained absent. 4(h) On 12.08.2016, the parties as well as their learned Advocates remained absent and same was the scenario on 24.11.2016. However, an application was tendered for and on behalf of the complainant and the matter was adjourned to 22.12.2016. 4(i) On 22.12.2016, Respondent No.2- accused remained absent and an application was tendered on his behalf and the matter was adjourned to 16.02.2017 for recording the evidence of the appellant-complainant. 4(j) On 16.02.2017, the complainant was not present, whereas, the accused remained present. Therefore, an application was given by the learned Advocate for the complainant under Exhibit-11 to lead the evidence, which came to be rejected. The matter was adjourned to 23.02.2017 for recording the evidence of the accused, whereas, the right of the complainant to lead the evidence was closed. 4(k) On 23.02.2017, the parties as well as learned Advocates on their behalf remained present. An application was tendered on behalf of the complainant to re-open the right to lead evidence, which came to be allowed with costs, the evidence of the complainant was recorded and the matter was adjourned to 24.03.2017 for cross-examination of the complainant. 4(l) On 24.03.2017, the parties as well as the learned Advocates appearing in their behalf remained absent and the matter was adjourned to 13.04.2017. 4(m) On 13.04.2017, the complainant remained absent, and therefore, learned Advocate appearing on his behalf gave an application for adjournment and the matter was adjournment to 21.04.2017. 4(n) On 21.04.2017, again the parties as well as the learned Advocates appearing on their behalf remained absent, and therefore, the matte was adjourned to 05.05.2017. 4(o) On 05.05.2017, Respondent No.2- accused remained absent, therefore, on an application made on his behalf, the matter was adjourned to 02.06.2017. 4(n) On 21.04.2017, again the parties as well as the learned Advocates appearing on their behalf remained absent, and therefore, the matte was adjourned to 05.05.2017. 4(o) On 05.05.2017, Respondent No.2- accused remained absent, therefore, on an application made on his behalf, the matter was adjourned to 02.06.2017. Same was the scenario on the next date, i.e. on 02.06.2017. 4(p) On 29.06.2017 also, an adjournment was sought and the matter was posted, for cross-examination of the complainant, on 21.07.2017. Another application for adjournment was made on behalf of Respondent No.2-accused and the matter was adjourned to 21.07.2017. Further, a notice was also issued to the appellant-complainant, since, he was not present. 4(q) On the next date, i.e. on 10.08.2017, neither the complainant nor the learned Advocate appearing on his behalf were present, and therefore, the learned Advocate for the accused gave an application vide Exhibit-29 to dismiss the complaint, which was accepted by the trial Court and the complaint came to be dismissed. 4.1 If one considers the application, below Exhibit-29, moved by the original accused, it was urged that the matter was unnecessarily being stretched on account of absence on the part of the complainant and the learned advocate representing him, and therefore, the complaint should be dismissed. 4.2 This Court notices that, on a couple of occasions, the complainant and the learned Advocate appearing on his behalf remained absent. However, after once the right of the complainant to lead the evidence was reopened, the complainant produced various documents on 23.02.2017. Since that date onward, right up to the dismissal of the complaint by the trial Court on 10.08.2017, it was either Respondent No.2- accused or his advocate, who remained absent, and/or the adjournments were sought at their behest. Of course, this Court notices that, at least, on three occasions, none of the parties nor the learned Advocates appearing on their behalf remained present and the matter had to be adjourned. However, after 23.02.2017, it was the continuous absence of either Respondent No.2- accused or the learned Advocate appearing on his behalf that the matter had to be stretched upto August, 2017. However, after 23.02.2017, it was the continuous absence of either Respondent No.2- accused or the learned Advocate appearing on his behalf that the matter had to be stretched upto August, 2017. 4.3 In this backdrop of facts to say that it was the complainant, who was not inclined to proceed with the matter, despite of best of the opportunities having been made available to him to proceed on merits, is an order, which surely deserves interference at the hands of this Court. The order of the trial Court is bereft of the factual details, which are emerging from record and it is also contrary to the very spirit of the law. Undoubtedly, the complainant needs to cooperate by remaining present on the dates, when the matter is scheduled for his cross-examination. However, in wake of the fact that the accused-Respondent No.2 and the learned Advocate appearing on his behalf, when continuously remained absent after once the matter was fixed for cross-examination of the complainant, the trial Court could not have acted upon an application moved by the learned Advocate for the accused-Respondent No.2 and could not have dismissed the complaint without entering into the merits. 4.4 Section 256 of the Code of Criminal Procedure, 1973 (for short, ‘the Code’), entitles the trial Court concerned to dismiss the complaint for want of prosecution and thereby, grant acquittal to the accused. The proviso to Section 256 of the Code, further, provides that to allow the absence of the complainant and instead it can permit his Advocate to remain present and proceed. The Court may permit the personal absence of the complainant and may proceed with the matter in the presence of the learned Advocate representing him. Although, such a discretion entitles the Court to insist on the presence of the complainant, more particularly, when the matter is fixed for his cross-examination. 4.5 The pendency of the matters under Section 138 of the NI Act and its elongated trials are the serious concerns of the Courts. Therefore, all concerned are expected to cooperate by remaining present without of loss of time. The Court also, at this stage, cannot be oblivious of the observations made by the Apex Court in ‘M/S. METERS AND INSTRUMENTS PVT. LTD. VS. KANCHAN MEHTA’, AIR 2017 SC 4594 . However, in wake of the discussion herein above, this Court deems it a fit case, where, interference is desirable. 5. The Court also, at this stage, cannot be oblivious of the observations made by the Apex Court in ‘M/S. METERS AND INSTRUMENTS PVT. LTD. VS. KANCHAN MEHTA’, AIR 2017 SC 4594 . However, in wake of the discussion herein above, this Court deems it a fit case, where, interference is desirable. 5. In the result, this appeal is ALLOWED and the impugned judgment and order, Dated: 10.08.2017, passed by the learned Addl. Chief Judicial Magistrate, First, Class, Vijapur, below Exhibit-1 in Criminal Case No. 892 of 2015, is QUASHED and set aside. The matter is remanded back to the trial Court concerned for its consideration on merits. The parties shall in proceeding with expeditious trial cooperate and they shall not seek any unnecessary adjournment, except, in exceptional circumstances, where, such adjournment may be permitted by the Court on strict scrutiny of grounds and only on payment of considerable costs, as may be determined by the Court concerned. The trial Court shall proceed with the matter and conclude the trial as expeditiously as possible, preferably not later than FOUR MONTHS, from the date of receipt of a copy of this order. Office to send back R&P, if any already called, to the Court concerned, FORTHWITH.