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Gujarat High Court · body

2022 DIGILAW 1719 (GUJ)

Bariya Sureshbhai Manabhai v. State Of Gujarat

2022-12-08

GITA GOPI

body2022
ORDER : 1. The present appeals have been filed under section 378 of the Cr.P.C., which are preferred against the order dated 20.04.2022 in Criminal Case Nos.92 of 2021 and 91 of 2021 respectively, which came to be dismissed for default under section 256 of Cr.P.C. 2. Mr. Muhammadyusuf M.Kharadi, learned advocate for the appellants referring to the rojnama of the proceedings submitted that, prior to registering the complaint criminal inquiry was undertaken by registering the matter as Criminal Inquiry Case Nos.03/2021 and 02/2021 respectively. The learned trial Court Judge was pleased to entertain the complaints, and by referring to the judgment of Hon’ble Apex Court in Indian Bank Association Vs. Union of India, reported in (2014) 5 SCC 519, took cognizance of the matter under section 138 of the N.I. Act and ordered to issue summons against the accused making it returnable on 15.09.2021, and thereafter the case was registered as Criminal Case Nos.92 of 2021 and 91 of 2021 respectively on the very same day. 2.1 Mr. Kharadi submitted that the complaint was exhibited as Exhibit-1; Vakalatnama, on record, at Exhibit-2; list of documents were produced vide a list at Exhibit-3, Affidavit of examination-in-chief at Exhibit-4 and Exhibit-5 was an application on record for exhibiting the documents produced by list. Mr. Kharadi submits that the proceedings show that the summons was issued, but since it could not be served, by Exhibit-6 on 08.12.2021, fresh address of the accused was provided and after an order below Exhibit-7, hand packet for the summons was received by the complainant, but when the accused failed to appear before the Court on 23.02.2022, bailable warrant was issued against the accused, which was made returnable on 09.03.2022. 2.2 Mr. Kharadi submits that the Advocate for the complainant had remained present on that day, but the warrant remained unserved; hence, on the next adjournment i.e. on 30.03.2022, prayer was granted to hand over the hand packet of bailable warrant to the complainant vide order below Exhibit-8, and the matter was adjourned to 20.04.2022, and to utter surprise of the complainant, the learned trial Court Judge dismissed the complaint by passing an order below Exhibit-1 considering it as default on the side of the complainant. 2.3 Mr. 2.3 Mr. Kharadi further submitted that the learned Judge had failed to appreciate his own proceedings when the matter was for the service of bailable warrant of the accused, but instead, had preferred to dismiss the complaint, though the advocate for the complainant was present before the Court. Mr. Kharadi submits that the only cause, which has been noted by the Judge, is that the complainant had not taken the hand packet of the warrant, which was ordered to be issued and the absence of complainant was noted while observing that the Advocate on record of the complainant was present before the Court, but has made no submission in connection with the complaint, and thus found the conduct of the complainant as of being not interested in proceeding the matter and, therefore, the learned trial Court Judge dismissed the complaint. 2.4 Mr. Kharadi submits that the order itself is bad in law, is against the provisions of section 256 of Cr.P.C. The complainant was represented by an Advocate on record. The proceedings were for the service of bailable warrant, which exercise was actually required to be undertaken by the Court, but since the summons could not be served to the accused, the complainant had volunteered to take the hand packet of the bailable warrant to be presented before the concerned police station to get it served. Mr. Kharadi states that the dismissal of the compliant as default has been considered as negligence of the complainant, which required to be quashed and set aside. 2.5 Mr. Kharadi in support of his submission relief on the judgment of (i) Associated Cement Co. Ltd. Vs. Keshvanand, reported in (1998) 1 SCC 687 , (ii) Ratanlal Gulabchand Gupta Vs. Sahara Sev. Gruh Udyog Bhandar & Ors., reported in 1977 (1) GLR 524. 3. The facts suggest that the complainants were serving as teachers at Dhanpur, had lent money to the accused, being good friend from the same profession. As per the complainant in the year 2014-15, the accused was in need of money and therefore complainant took loan from ‘Bariya Nagrik Sahakari Bank Ltd.’, Devgadh Bariya with the understanding that the loan amount has to be repaid by the accused in stipulated installments. It is contended that the accused failed to repay the loan amount and therefore the complainant was constrained to demand the amount given to the accused. It is contended that the accused failed to repay the loan amount and therefore the complainant was constrained to demand the amount given to the accused. In response thereof, the accused executed an undertaking dated 23.12.2020 and issued cheque with the understanding that the accused will pay the interest accrued on the loan taken by the complainant; however, the accused failed to do so and upon demand being made by the complainant for the cheque amount, the accused assured the complainant that his cheque would be honoured, but on presentation, the cheque was not cleared on the ground of ‘fund insufficient’ and therefore after issuance of statutory notice, complaint came to be filed. 4. In Associated Cement Co. Ltd. Vs. Keshvanand, reported in (1998) 1 SCC 687 , the Hon’ble Apex Court while referring to the provisions of section 256 of Cr.P.C. in context of the complaint filed under section 138 of the N.I. Act, has made observations as under: “15. Section 256 of the Code of Criminal Procedure, 1973( for short 'the new Code') is the corresponding provision to Section 247 of the old Code. The main body of both provisions is identically worded, but there is a slight difference between the provisos under the two sections. The proviso to section 256 of the new code is reproduced here: “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." 16. What was the purpose of including a provision like Section 247 in the old code (or section 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 to much harassment by a complaint. An accused who is per force to attend the court on all posting days can be put to 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. An accused who is per force to attend the court on all posting days can be put to 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. 17. 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. 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 progress of the case and also whether the situation does not justify the case being adjoined 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 step of axing down the complaint 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.” 4.1 This Court in case of State v. Keshavram, reported in 1977 GLR 524 , held as under: "The power under Sec. 256 of the Criminal Procedure Code 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. The proviso to Sec. 256 further lays down that when the complainant is represented by a Pleader or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. The proviso to Sec. 256 further lays down that when the complainant is represented by a Pleader or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. In the instant case, the situation 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 the Magistrate." 4.2 Similarly, in the case of Sureshchandra Chandulal Patni V. Natwarlal Keshavlal Patni, reported in 1992 (1) GLR 626 , this Court held that: "In the instant case, the learned Magistrate has not recorded any reason about his thinking it proper to adjourn the hearing of the case to some other date. It appears that he has ignored the proviso to Sec. 256 of the Code of Criminal Procedure. The power under Sec. 256 of the Code of Criminal Procedure has been conferred on the Magistrate obviously in the interest of justice, with a view to seeing that the accused is not subjected to any undue harassment. It is clear from the proviso to Sec. 256 of the Code of Criminal Procedure that when the complainant is represented by a pleader or where the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense with the personal attendance of the complainant and proceed with the case. In the instant case, the learned Magistrate does not appear to have applied his mind in dispensing with the personal attendance of the complainant and to proceed with the case or to adjourn the case to some other date as requested in the application submitted by the Advocate for the complainant. In the present case, the situation as on March 5, 1984 squarely falls within the aforesaid proviso and still the learned Magistrate acted under sub-sec. (1) of Sec. 256 of the Code of Criminal Procedure acquitting the accused. It is therefore, clear that the learned Magistrate has ignored the provision contained in the proviso to Sec. 256 of the Code of Criminal Procedure." 5. Here, in this case, after verification of the complaint, it came to be registered. (1) of Sec. 256 of the Code of Criminal Procedure acquitting the accused. It is therefore, clear that the learned Magistrate has ignored the provision contained in the proviso to Sec. 256 of the Code of Criminal Procedure." 5. Here, in this case, after verification of the complaint, it came to be registered. The process of summons was ordered to be issued against the accused; since could not be served, the complainant had made a prayer for handing him the hand packet of bailable warrant to be given to the local police station so as to be served to the accused. The proceedings suggest that the Advocate on record was continuously pursuing the matter and on the day of dismissal of the complaint too, the Advocate on record was present before the Court and after an order of handing over the hand packet of the bailable warrant to the complainant, on the very next adjournment, the complaint was dismissed for default observing that the complainant has been negligent in pursuing the process and had failed to comply the order by taking the hand packet of the bailable warrant. 5.1 It is unfortunate to note that when the complainant himself had volunteered to get the process of the bailable warrant served and when the action of the complainant was to assist the Court by handing the packet to the concerned police station so that it could expedite the process, the learned trial Court Judge considered it as a duty of the complainant, which process was actually to be undertaken by the Court itself and on that ground dismissed the matter for default considering it as a negligence and carelessness of the complainant. The proceedings show that already examination-in-chief was on record; the relevant documents were produced; prayer was also made to exhibit those documents; in spite of that, the learned trial Court Judge conducted the complaint observing the conduct of complainant of negligent. 6. The proceedings show that already examination-in-chief was on record; the relevant documents were produced; prayer was also made to exhibit those documents; in spite of that, the learned trial Court Judge conducted the complaint observing the conduct of complainant of negligent. 6. Section 256 of Cr.P.C. has given the power to the Court concerned to dismiss the complaint only on the day when the summons has been issued on the complaint and on the day appointed for the appearance of the accused or in any subsequent day thereto, to which the hearing may have been adjourned, the complainant does not appear, the Magistrate shall despite anything contained in Cr.P.C. acquit the accused, unless for some reason he deems fit to adjourn the hearing of the case to some other day. The proviso to the said sub-section (1) clarifies that when the complainant is represented by a pleader or by an officer conducting the prosecution or where the Magistrate is of the opinion that personal attendance of the complainant is not necessary, the Magistrate may dispense with his attendance and proceed with the case. 7. Here, in this case, the complainant was represented by an Advocate on record. The order itself suggests that the Advocate was present in the Court on that day. There was no reason for the trial Court Judge to dismiss the matter. When the pendency of matters with arrears show a long list, it would be not possible for the Court to deal with all the matters and it would not be expected from a litigant to simply sit in the Court while there would not be any progress in the matter, and more specifically when he is represented by an Advocate. In a case of this nature under section 138 of N.I. Act, on every dates, in all the proceedings, the presence of complainant is not necessary, more so, when he has engaged an Advocate. 7.1 The learned trial Court Judge has taken a shortcut to dispose of the matter rather than considering the case of the complainant to decide on merits. 7.1 The learned trial Court Judge has taken a shortcut to dispose of the matter rather than considering the case of the complainant to decide on merits. The learned trial Court Judge ought to have kept in mind that the order below section 256 Cr.P.C. dismissing the complaint in default leads to acquittal of the accused, and once an accused has been acquitted in the offence, the law provide a remedy by way of appeal against the order of acquittal under section 378(4) of the Cr.P.C. A simple order of dismissal of the case without any scope of restoring the same would drag the litigant to the higher Court for filing the appeal to get the order quashed and set aside. The learned trial Court Judge was required to give an overview of his own proceedings. The order is without any application of mind; it is a mechanical order for disposing of the case rather than deciding the case on merits. 8. Thus, in view of the reasons given above, both the appeals are allowed. The order dated 20.04.2022 in Criminal Case No.92 of 2021 and Criminal Case No.91 of 2021 passed by the Chief Judicial Magistrate, Dhanpur, are quashed and set aside. The Criminal Case No.92 of 2021 and Criminal Case No.91 of 2021 are ordered to be restored in original status on the file of the concerned Court with a direction to decide the case on merits in accordance with law. Record & Proceedings, if any, be sent back to the concerned Court. 9. Office to keep copy of this order in Criminal Appeal No.2060 of 2022.