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Gujarat High Court · body

2020 DIGILAW 201 (GUJ)

Manojbhai Jasmatbhai Ramoliya v. State of Gujarat

2020-01-30

V.P.PATEL

body2020
JUDGMENT : 1. The appellant – Original Complainant has filed this appeal under Section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred as “the Code”), being aggrieved and dissatisfied with the order dated 09.03.2019 passed by the learned the Additional Chief Judicial Magistrate, Gondal (hereinafter referred as “the learned Trial Court”) in Criminal Case No. 1713 of 2017. 2. Heard learned Advocate Mr.Pratik Barot, for the for the appellant, learned Advocate for respondent No.2 – original accused and learned APP Ms. Monali H. Bhatt for respondent No.1 – State. Order under Challenge: 3. The Learned Additional Chief Judicial Magistrate, Gondal has passed an order dated 09.03.2019, dismissing the private complaint being Criminal Case No. 1713 of 2017 filed by the present appellant against the respondent No. 2 for the offences punishable under Section 138 of the Negotiable Instruments Act (For brevity “NI Act”) for default for non-prosecution as the appellant – original complainant remained absent for proceeding with the criminal case. 4. Arguments of the Appellant – Original Complainant : 4.1 The learned Advocate for the appellant has submitted that the Private Complaint was filed being Criminal Case No. 1713 of 2017. That, after process was issued and trial commenced and came up for recording evidences on ten occasions. Lastly on 09/03/2019, the learned trial court has dismissed the complaint for non-prosecution under Section 256 of the Code, merely on ground of absence of the appellant – original complainant. 4.2 The learned advocate for the appellant has further submitted that the respondent – original accused was not remaining present to proceed with the case. Therefore, initially bailable warrant was issued against him. It is further submitted that as original accused was not remaining present, the learned trial court has issued non-bailable warrant against him. The original accused had filed application for cancellation of warrant and for bail. Thereafter, again on 14/09/2018 as the original accused was not present, the learned trial court has again issued non-bailable warrant against him. Then, on 01/03/2019 as the original accused and original complainant were not present matter was adjourned to 09/03/2019. And on 09/03/2019 in special sitting, the learned trial court has dismissed the complaint for non-prosecution under Section 256 of the Code on the count of absence of the complainant. Then, on 01/03/2019 as the original accused and original complainant were not present matter was adjourned to 09/03/2019. And on 09/03/2019 in special sitting, the learned trial court has dismissed the complaint for non-prosecution under Section 256 of the Code on the count of absence of the complainant. 4.3 The learned advocate for the appellant has submitted that the before passing the impugned order, the learned trial court has not taken into consideration conduct of the original accused and facts that once bailable warrant and twice non-bailable warrant were issued against the present respondent No. 2 – original accused. That, evidences still to be lead by the parties concerned in support and against the complaint. The matter was not decided on merit, therefore, the matter may be remanded back to its original position for the parties to lead evidences in support of their respective claim. Arguments of the respondent No. 2 – Original Accused. 5. The learned advocate for the respondent No. 2 has submitted that the appellant – original complainant is remained absent on three occasions. That, the appellant has not mentioned any ground in the appeal memo for his absence. That, the impugned order passed by the learned trial court is legal and proper therefore the present appeal may be dismissed. Arguments of the learned APP for the State: 6. Learned APP has submitted that the present matter is with regard to the complaint between private parties, the Hon’ble Court may pass just orders in the interest of justice. Facts of the Case: 7. Brief facts of the case are that appellant has filed private complaint before the Additional Chief Judicial Magistrate, Gondal under Section 138 of the Negotiable Instruments Act, 1881 against the present respondent No. 2. The said case was registered as Criminal Case No. 1713 of 2017. The learned Trial Court has issued process in the said case and commenced the trial. As the original accused was not remained present, the learned trial court has issued bailable and non-bailable warrants against the respondent No. 2- original accused. That, thereafter on 09/03/2019, the learned Trial Court has in special sitting vide impugned order dated 09/03/2019 dismissed the Criminal Case No.1713 of 2017 for non-prosecution under Section 256 of the Code. Hence, the present appeal. Merits of the case: 8. That, thereafter on 09/03/2019, the learned Trial Court has in special sitting vide impugned order dated 09/03/2019 dismissed the Criminal Case No.1713 of 2017 for non-prosecution under Section 256 of the Code. Hence, the present appeal. Merits of the case: 8. The main argument of the appellant is that most of the time the original complainant remained present for proceeding the case. On the contrary, the original accused remained absent on several occasion, therefore, initially bailable warrant and then non-bailable warrants were issued against him. Only on three occasion the appellant was not remained present. The learned Trial Court has dismissed the case for non-prosecution only on count of absence of the appellant – original complainant, without taken into consideration conduct of the original accused. 9. This Court has come across the judgment of the Apex Court reported in AIR 1998 SC 596 dealing in case of Associated Cement Co. Ltd. Vs. Keshavanand wherein scope and purpose of insertion of Section 256 in the Code is discussed, which reads as under: “17. What was the purpose of including a provision like S. 247 in the Code (or S.256 in the new Code). It affords some deterrence against dilatory tactics on the part of a complainant who set the law in motion through his complaint. An accused who is per force to attend the Court on all posting days can be put much harassment by a complainant if he does not turn up to the Court on occasions when his presence is necessary. The Section, therefore, affords a protection to an accused against such tactics of the complainant. But that does not mean if the complainant is absent, Court has a duty to acquit the accused in invitum. 18. Reading the Section in its entirety would reveal that two constraints are imposed on the Court for exercising the power under the Section. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. First is, if the Court thinks that in a situation it is proper to adjourn the hearing then the Magistrate shall not acquit the accused. Second is, when the Magistrate considers that personal attendance of the complainant is not necessary on that day the Magistrate has the power to dispense with his attendance and proceed with the case. When the Court notices that the complainant is absent on a particular day the Court must consider whether personal attendance of the complainant is essential on that day for the progress of the case and also whether the situation does not justify the case being adjourned to another date due to any other reason. If the situation does not justify the case being adjourned the Court is free to dismiss the complaint and acquit the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the steps of axing down the complainant may not be a proper exercise of the power envisaged in the section. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice.” 10. Perused the papers of the appeal and impugned order. The private complaint filed by the appellant was registered as Criminal Case. Summons and warrant has been issued to the accused. Thereafter, on one occasion bailable warrant and on two occasion non-bailable warrants have been issued against the respondent No. 2 -original accused. Thereafter, matter could not proceed further on merit and resulted into dismissal for non-prosecution. There are ample powers to the Court to secure presence of the witnesses or accused. From bare reading of the impugned order, it appears that no efforts have been made for this purpose. 11. On perusal of the record it transpired that accused had remained absent several times. The court has passed the order to issue bailable and non-bailable warrants. That non-bailable warrant was not returned either executed or non-executed. The affidavit in chief examination is filed by the complainant. The matter was pending to secure presence of the Accused. On 9.3.2019, it was second Saturday. It was public holiday. The matter was kept in special sitting. Special sittings are arranged for Lok Adalat, for compromise between the parties or for compounding the offence. The affidavit in chief examination is filed by the complainant. The matter was pending to secure presence of the Accused. On 9.3.2019, it was second Saturday. It was public holiday. The matter was kept in special sitting. Special sittings are arranged for Lok Adalat, for compromise between the parties or for compounding the offence. It is too much on the part of the court to dismiss the complaint when the matter was pending for presence of Accused. Therefore, considering the principle of natural justice and the ratio laid by the Hon'ble Apex Court in above referred judgments, this Court is of the view that an opportunity is to be given to the prosecution to prove his case on merit by remanding the matter to the learned Trial Court for hearing the case on merit. 12. The learned Trial Court has in impugned order recorded that present complaint is registered in the year 2017. Thereafter, summons has been issued in the matter and trial was commenced. The learned trial court has without taken into consideration conduct of the original accused and without giving any opportunity to the original complainant, dismissed the complaint for non-prosecution vide impugned order. It also appears from the record that the appellant – original complainant also remained absent on three occasion. As such negligence is established on the part of the appellant. Therefore, this Court is of the view that cost is required to be imposed on the appellant. 13. For the reasons recorded here-in-above, the present appeal is partly allowed. The impugned order dated 09/03/2019 passed by the Additional Chief Judicial Magistrate, Gondal in Criminal Case No.1713 of 2017 is hereby quashed and set aside and the matter is remanded back to the learned Trial Court for deciding the case on merit. 14. The Appellant – original complainant is directed to extend full cooperation and see to it that he remains present on the dates of the hearing before the trial court. The trial Court shall proceed further in accordance with law. 15. The appellant shall pay cost of Rs.10,000/- (Rupees Ten Thousand only) to the Respondent No.2 – Original Accused within one month from today. If it is not paid the Respondent No.2 may recover according to law. 16. Record and proceedings shall be sent back to the learned Trial Court forthwith. 17. Rule is made absolute the aforesaid extent.