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2024 DIGILAW 112 (GUJ)

Hinaben Hasmukhbhai Patel v. State of Gujarat

2024-01-16

M.K.THAKKER

body2024
JUDGMENT : Order in R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 10567 of 2023 As this Court deems it fit to decide the case on merits, the formal leave seeking leave to prefer an appeal is granted. Application seeking leave to prefer an appeal stands disposed of. Order in R/CRIMINAL APPEAL NO. 1397 of 2023 1. Though ‘Rule’ is served as per Report filed by the Registry on 18.12.2023, no one has appeared either through an advocate or through the person. 2. This appeal is filed challenging the judgment and order of acquittal passed by learned 3rd Additional Judicial Magistrate First Class, Palanpur dated 30th November, 2022 in Criminal Case No.4488 of 2018. 3. It is the case of the complainant that complainant is doing the business in the name and style of Sarvottam Petroleum and selling the diesel and petrol under the agency of Indian Oil Corporation. The Respondent-accused is the contractor and doing the business of transport of Banas Dairy. As for refilling of the milk and for transporting the same, tankers were used and diesel was filled up on credit basis from the petrol pump of the complainant. There was a due of Rs.1,92,695/- as on 10th March, 2018. For payment of the aforesaid due, the cheque bearing Cheque No.178509 was issued in favour of the complainant and on depositing the same, it was returned with the endorsement of ‘insufficient fund’. After following the procedure prescribed under the Negotiable Instruments Act, the complaint came to be filed being a Criminal Case No.4488 of 2018. After recording verification of the complainant, summons came to be issued vide an order dated 4.2.2019 and thereafter from time to time, the matter was adjourned because of non-appearance of the respondent-accused. During this period, the bailable warrant and Non Bailable Warrant was also issued, which was in existence upto 27th August, 2022. On that day, the respondent-accused appeared and filed an application for cancellation of warrant below Exh.8, which was allowed and case was kept for the further statement of the accused. It is further case of the complainant that thereafter for 4 (four) consecutive dates, the complainant was not remained present because of miscommunication between the learned advocate and the complainant. On that day, the respondent-accused appeared and filed an application for cancellation of warrant below Exh.8, which was allowed and case was kept for the further statement of the accused. It is further case of the complainant that thereafter for 4 (four) consecutive dates, the complainant was not remained present because of miscommunication between the learned advocate and the complainant. Therefore, the impugned order was passed on 30th November, 2022 dismissing the complaint for non prosecution by exercising the power under Section 256 of the Code of Criminal Procedure, which is impugned before this Court. 4. Heard learned advocate, Mr. Ankit Y. Bachani, for the appellant-complainant and as observed earlier, no one appeared on behalf of respondent-accused. 5. Learned advocate, Mr.Bachani, for the appellant submits that though matter was filed in the year 2018, for 4 (four) years, respondent-accused did not appear and therefore, the matter was adjourned for the execution of the bailable/ Non Bailable Warrant. For the first time, respondent-accused appeared on 27th August, 2022 and thereafter, the case was kept on 1st August, 2022. Learned advocate submits that as per record, the plea of the respondent-accused was recorded on 1.8.2022 and matter was kept on 10th August, 2022. on that day, the complainant and his learned advocate was absent therefore, case was adjourned on 18.10.2022. Therefore, on 18th October, 2022, this matter was kept for the evidence of the complainant and on that day, learned advocate for the complainant was present. However, complainant was absent and due to absence of the complainant, the matter was kept on 22nd November, 2022. On that day also, the complainant was absent and from the record, it transpires that accused also not remained present and therefore, the matter was kept on 30th November, 2022. On that day also, the complainant or the accused nor their respective advocates were present, therefore, the complaint came to be dismissed for non prosecution. Learned advocate, Mr.Bachani, submits that for 4 (four) years, the trial remained pending for execution of the warrant to the respondent-accused, thereafter, for 4 (four) consecutive dates, the complainant did not remain present because of the miscommunication on the part of the learned advocate for the complainant. Mr.Bachani, learned advocate submits that even before this Court also, though ‘Rule’ came to be served on 18.12.2023, the respondent had chosen not to appear before this Court. Mr.Bachani, learned advocate submits that even before this Court also, though ‘Rule’ came to be served on 18.12.2023, the respondent had chosen not to appear before this Court. Learned advocate further submits that for one occasion, only the matter was adjourned for the cross examination of the complainant even on that day also, learned advocate for the accused or the accused was absent. Learned advocate further submits that there is no other remedy available for the complainant when the complaint was dismissed in view of the limitation prescribed under the Act. Learned advocate submits that due to this technical dismissal, complainant would unable to recover the cheque amount, therefore, it is prayed to restore the complaint to its original file. Learned advocate submits that as the 4 (four) consecutive dates, the complainant or his advocate could not remained present, if some cost would be awarded, it would serve the purpose. 6. Considering the submissions advanced by learned advocate for the complainant, before going into the merits of the case, Section 256 of the Code of Criminal Procedure is required to be re-looked. “Section 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 hereinbefore 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”. Comments There is no denying that dismissal of the complaint in default under section 256 entails the acquittal of the accused. Once an accused has been acquitted of the offence, the law provides a remedy by way of an appeal against the order of acquittal under section 378(4) of the Code H.P. Agro Industries Ltd. V/s. M.P.S. Chawla (1997) 2 Crimes 592 (H&P) 7. Once an accused has been acquitted of the offence, the law provides a remedy by way of an appeal against the order of acquittal under section 378(4) of the Code H.P. Agro Industries Ltd. V/s. M.P.S. Chawla (1997) 2 Crimes 592 (H&P) 7. Considering the above provision and the record, which is part of the appeal, it transpires that summons came to be issued on 4.2.2019, thereafter, accused remained absent and therefore, Non Bailable Warrant was issued, which was served and accused appeared on 27th August, 2022 and thereafter, case was adjourned on 1st August, 2022 for recording the plea and further statement of the accused. On 1st August, 2022, the plea was recorded and case was adjourned on 10th August, 2022 for the cross examination of the complainant. On that day, neither the complainant nor his advocate was present and therefore, the matter was adjourned on 18th October, 2022. From the Rojkam, it transpires that learned advocate for the complainant was present on 18.10.2022, however, the complainant and accused both were absent, therefore, the case was kept on 22nd November, 2022. On perusing the Rojkam, it further transpires that neither the complainant or accused nor their respective learned advocates were present and therefore, the matter was adjourned on 30th November, 2022. On 30th November, 2022 also, neither accused or complainant nor their advocates were present, therefore, complaint came to be dismissed by the learned Magistrate by exercising the power under Section 256 of the Code of Criminal Procedure. It is true that complainant was not present for cross examination on 10th August, 2022, 18th October, 2022 and 22nd November, 2022 but on perusing the Rojkam, it transpires that neither the accused or their advocates were also remained present. Therefore, even if the complainant would have remained present then also trial ought not to have been proceeded because of the absence of the accused or their advocate. This Court is of the view that natural justice requires the Court to give opportunity to the parties, though they have failed to use such opportunity at times. Therefore, even if the complainant would have remained present then also trial ought not to have been proceeded because of the absence of the accused or their advocate. This Court is of the view that natural justice requires the Court to give opportunity to the parties, though they have failed to use such opportunity at times. The complainant having fair case should not suffer because of his absence as the proceedings under Section 138 of the Negotiable Instruments Act having the object and purpose to harness the violators of the transaction arising from mercantile law and ensures that necessary commitment flows from their obligation and make them liable for criminal prosecution to achieve the aforesaid object. This Court is of the view that instead of this technical dismissal, learned Court ought to have decided the case on merits after giving due opportunity to both the parties to adduce their evidence. As it is default on the part of the complainant in remaining present for 4 (four) consecutive dates, the appropriate cost is required tobe awarded while quashing the impugned order. 8. In view of above, this appeal is allowed. Criminal Case No.4488 of 2018 is ordered to restore to its original file. The cost of Rs.10,000/- be deposited with the Registry of this Court within a period of 4 (four) weeks from today. On depositing the same, Registry is directed to remit the said amount in the account of Shishu Gruh, Paldi, Ahmedabad by way of electronic mode. 9. It is needless to clarify that no any unnecessary adjournments be sought for by the complainant and would see that trial is completed without further delay. 10. In view of above, impugned judgment and order passed by learned 3rd Additional Judicial Magistrate First Class, Palanpur dated 30th November, 2022 in Criminal Case No.4488 of 2018 is quashed. Criminal Appeal stands allowed. Record and proceedings be sent back to the Court below.