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2024 DIGILAW 1866 (GUJ)

Patel Milap Babubhai v. State Of Gujarat

2024-10-08

HEMANT M.PRACHCHHAK

body2024
JUDGMENT : Hemant M. Prachchhak, J. 1. The appellant has preferred present Appeal under Section 378 of the Code of Criminal Procedure ("Cr. P.C." for short) against the order dated 27.12.2023 passed by the 7th Additional Senior Civil Judge, Ahmedabad (Rural) (hereinafter be referred to as “the trial Court”) in Criminal Case No. 6162 of 2022, whereby the trial Court has dismissed the Criminal Case for want of prosecution as the original complainant did not remain present under the provisions of Section 256(3) of Cr.P.C. 2. It is the case of the appellant that the appellant is in the construction business for last many years and respondent no. 3 is into the electrical contract business in the name and style of the respondent no. 2 and as the respondents had done the work at one of the sites of the appellant, the respondent used to contact the appellant for financial help and considering the old relations shared with the respondent, the appellant used to help him. 2.1 Before filing of the complaint, the respondent was in need of financial help of Rs. 2,00,000/- for some work of temple and he promised to the appellant to return the same by September 2021. Relying upon the say of the respondent, the appellant gave total Rs. 2,00,000/- to the respondent by way of IMPS and NEFT. 2.2 Thereafter, the appellant demanded the money which he had lent to the respondent, he gave post dated cheque No. 182966 of Rs. 2,00,000/- of IDBI Bank, Patan Branch. The said cheque was issued by the respondent no. 2. As the said cheque came to be dishonoured, the complainant sent the legal notice and thereafter filed the aforesaid complaint. 2.3 As the appellant and his pleader did not remain present, the Ld. Magistrate had passed order under section 256 of CrPC and thereby virtually acquitted the respondent no. 2 vide judgment dated 27-12-2023. 2.4 Being aggrieved and dissatisfied by the judgment and order dated 27-12-2023, the Appellant has preferred present Criminal Appeal under Section 378 of Criminal Procedure Code. 3. Heard Mr. Tanmay B. Karia, learned Counsel appearing for the appellant and Mr. D.R. Jatav, learned Counsel (on hybrid) for the respondent-accused. 4. Mr. 2 vide judgment dated 27-12-2023. 2.4 Being aggrieved and dissatisfied by the judgment and order dated 27-12-2023, the Appellant has preferred present Criminal Appeal under Section 378 of Criminal Procedure Code. 3. Heard Mr. Tanmay B. Karia, learned Counsel appearing for the appellant and Mr. D.R. Jatav, learned Counsel (on hybrid) for the respondent-accused. 4. Mr. Tanmay B. Karia, learned Counsel appearing for the appellant has submitted that order passed by the trial Court is contrary to the provisions of Law and fact and therefore, the same deserves to be quashed and set aside. 4.1 He has submitted that the trial Court has failed to appreciate the facts and provisions of law in proper perspective and therefor,e the impugned judgment is unsustainable and bad in law. He has submitted that due to a bonafide mistake, the advocate of the appellant did not remain present on the date of passing of the impugned judgment and therefore, the same may be quashed and set aside. 5. On the other hand, Mr. Jatav, learned Counsel for the respondent accused has submitted that after evaluating the evidence on recording the absence of learned advocate for the appellant the trial Court has passed impugned order under Section 256(3) of the Cr.P.C. and therefore, this Court may not interfere with the impugned order and dismiss the present Appeal. 6. It appears that the complaint was filed in the year 2022 and on 3.9.2022 the Court had admitted the complaint and issued process and within short span of a year the complaint was dismissed for default under Section 256(3) of Cr.P.C. on account of non presence of the complainant or his advocate. 7. It is appropriate to have a glance of Section 256 of Cr.P.C. which reads as under:- "256. 7. It is appropriate to have a glance of Section 256 of Cr.P.C. which reads as under:- "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." 8. At this stage, it is also appropriate to take into account the observations made by the Hon'ble Apex Court in the decision in case of Mohd. Azeem Vs. A.Venkatesh and another reported in (2002) 7 SCC 726 , wherein the Hon'ble Apex Court has held as under:- "3. From the contents of the impugned order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. The learned Judge of the High Court observes that even on earlier dates in the course of trial, the complainant failed to examine the witnesses. But that could not be a ground to dismiss his complaint for his appearance (sic absence) on one single day. The cause shown by the complainant of his absence that he had wrongly noted the date, has not been disbelieved. It should have been held to be a valid ground for restoration of the complaint. 4. In our opinion, the learned Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant. 5. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant. 5. The impugned orders dated 22-6-2001 of the Metropolitan Magistrate and dated 24-7-2001 of the High Court respectively, are set aside. The complaint is restored and learned Magistrate is directed to proceed with the trial of the case after issuance of formal notices to both the parties of the next date to be fixed in the case. The learned counsel appearing for the parties are directed to inform the parties to appear before the Court of Metropolitan Magistrate on or before 9-9-2002 to ascertain the date fixed by the trial Judge for the case." 9. The observations made by the Coordinate Bench of this Court in paragraph Nos. 9 and 10 in case of Hitesh Rasiklal Shah vs. Mahavir Ghevarchand Chopra passed in Criminal Appeal 1836 of 2005 decided on 4.9.2015, read as under:- “9. Though the submissions have been made by learned Advocate Shri J.R.Dave for Respondent No.1-Accused raising objection regarding the maintainability, the same cannot be readily accepted in view of the fact that after issuing notice the opportunity has been granted and the delay has also been condoned. Therefore, what is required to be considered is merits of the present appeal. Learned Advocate Shri J.R.Dave has emphasized that the present appeal does not challenge the order of dismissal of the complaint but the order below application for restoration and the revision. As it transpires, the issue which has been focused is the dismissal of the complaint of the complainant in his absence though notice was ordered to be issued by the court on 1.1.2001 and the next date was 9.2.2001. It appears that due to earthquake the complainant could not remain present nor any notice was served. As it transpires from the record and the rojkam the notice has not been returned back on 17.8.2001 when the complaint of the complainant came to be dismissed in exercise of power under Section 256 of Cr.PC. Thus, it is evident, even though notice was ordered by the court itself in order to provide an opportunity to the complainant the court did not verify as to why the notice has not been returned back. Thus, it is evident, even though notice was ordered by the court itself in order to provide an opportunity to the complainant the court did not verify as to why the notice has not been returned back. It therefore suggests that the notice which was sought to be given to provide an opportunity to the complainant the same was not verified that the opportunity is made available to the complainant. He has stated that due to the earthquake thereafter for some time he could not remain present. Learned Advocate Shri J.R.Dave is right in his submission with regard to the fact that the application for restoration of the complaint itself was misconceived in light of the statutory provisions of Section 256 Cr.PC. Therefore the appeal could have been preferred but in fact it was not preferred earlier. However, the fact remains, thereafter the present appeal with condonation of delay of appeal and seeking leave to appeal has been granted after issuing notice to the other side. Therefore, this is required to be examined only on merits whether the order passed by the court below in exercise of power under Section 256 Cr.PC dismissing the complaint could be sustained in spite of the fact that the notice issued to the complainant was not served. Further as it is reflected from the rojkam from 1996 to 2001 it proceeded with a snails speed and thereafter the haste and hurry is not justified. In any view of the matter though it cannot be said that there is a singular default, reference can be made to the judgment of the Hon'ble Apex Court reported in (2002) 7 SCC 726 – Mohd. Azeem v. A.Venkatesh and Anr. Similarly, this court in a judgment reported in 2013 (3) GLR 2723 – Harisinh Bhagwatsinh Sarvaiya v. State of Gujarat referring to this very issue of exercise of power under Section 256 of Cr.PC and dismissal of the complaint for non-appearance of the complainant or his Advocate has made the observations referring to the approach in such matters that the matter should be decided on merits. This court also while passing the order in Criminal Appeal No. 248 of 2013 and allied matters has also expressed the same view that though the Advocate is supposed to take care of the matter of his client, but for his omission or lapses the litigant has to pay heavily. This court also while passing the order in Criminal Appeal No. 248 of 2013 and allied matters has also expressed the same view that though the Advocate is supposed to take care of the matter of his client, but for his omission or lapses the litigant has to pay heavily. Therefore, the party may not be made to suffer for the lapse on part of the Advocate. It is well accepted that normally the matter should be decided on merits rather than on technicality as it provides an opportunity to both the sides. The Hon’ble Apex Court in a judgment reported in (2002) 7 SCC 726 in the case of Mohd. Azeem Vs. A. Venkatesh and another, referring to the same provisions of Section 256 Cr.PC and Section 138 of the Negotiable Instruments Act and has made the observation that when the matter was dismissed for nonappearance of the complainant, the Court should not have adopted a strict and unjust attitude resulting in failure of justice. 10. Therefore the submissions which have been made by learned Advocate Shri J.R.Dave referring to the judgment reported in case of S.Rama Krishna v. S.Rami Reddy (supra) that the Magistrate has the powers to acquit and the accused has the right for speedy trial is required to be considered in background of the facts of the case Though he has emphasized this aspect about the earlier trial or the expeditious trial, the fact remains that the matter has to be decided on merits rather than on technicalities as referred to herein above. Therefore the submissions made by learned Advocate Shri Viral Dave cannot be accepted and the present Appeal as submitted by the learned Advocate Shri Pandya deserves to be allowed and accordingly stands allowed. The order dated 17.8.2001 dismissing the complaint / Criminal Case No. 4706 of 1996 is hereby quashed and set aside. The order below application for restoration at Annexure- E and the order passed in Revision against that order at Annexure-F are set aside with the clarification that as per the statutory provisions, there is no provision for restoration or recalling of the order and those proceedings are of no consequence. The order below application for restoration at Annexure- E and the order passed in Revision against that order at Annexure-F are set aside with the clarification that as per the statutory provisions, there is no provision for restoration or recalling of the order and those proceedings are of no consequence. Therefore the order at Annexure-A by which the complaint of the complainant being Criminal Case No. 4706 of 1996 has been dismissed by order dated 17.8.2001 is hereby quashed and set aside and the Criminal Case No. 4706 of 1996 is ordered to be restored to the file for deciding the same on merits in accordance with law expeditiously and preferably within a period of six months. It goes without saying that both the sides will cooperate in proceeding with the aforesaid case and it will be open for the Presiding Officer to insist for hearing and / or impose the cost in case of failure to remain present. R & P to be sent back.” 10. In the judgment of this Court dated 22.10.2012 passed in Criminal Appeal No. 1630 of 2012 in case of Biren Chandulal Mehta vs. State of Gujarat, the Coordinate Bench of this Court has after considering the judgment of Hon'ble Apex Court in case of S. Rama Krishna vs. S. Rami Reddy (D) by his LR and Others reported in (2008) 5 SCC 535 has observed in paragraph No.7 which reads as under:- "7.0. Now, so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of S. Rama Krishna(supra) relied upon by the learned advocate for the accused, on considering the said decision, it appears to the Court that the same shall not be of any assistance to the accused in the facts and circumstances of the case. In the case before the Hon'ble Supreme Court it was found that the complainant remained absent on 14 dates between 18.4.2005 to 23.1.2006 and thus it was found that complainant remained negligent." 11. Further, in the decision of Coordinate Bench of this Court in case of Harisinh Bhagwatsinh Sarvaiya vs. State of Gujarat reported in 2013 (3) G.L.R. 2723 , as well as in the case of Ankur Arunrao Pawale vs. Ritaben Rameshbhai Bhatt reported in 2013(3) G.L.R. 2429 the Court has decided similar issue. 12. Further, in the decision of Coordinate Bench of this Court in case of Harisinh Bhagwatsinh Sarvaiya vs. State of Gujarat reported in 2013 (3) G.L.R. 2723 , as well as in the case of Ankur Arunrao Pawale vs. Ritaben Rameshbhai Bhatt reported in 2013(3) G.L.R. 2429 the Court has decided similar issue. 12. In view of the above, it appears that the trial Court has committed an error in acquitting the accused only for absence of the complainant on one day. 13. Considering the facts and circumstances of the case and considering observations made in the decision of the Hon’ble Apex Court and this Court which are referred hereinabove, this Court is of the opinion that present Appeal requires to be remanded back to the trial Court for reconsideration. 14. Accordingly, present appeal is allowed. The order dated 27.12.2023 passed by the 7th Additional Senior Civil Judge, Ahmedabad (Rural) in Criminal Case No. 6162 of 2022 is hereby quashed and set aside and the complaint is restored to its original status. 15. The complainant-appellant herein is hereby directed to pay cost of Rs.10,000/- to the Legal Service Authority at Ahmedabad Rural within period of ten days from the date of receipt of copy of writ of the order. 16. The trial Court is directed to decide the complaint on its own merits after giving proper opportunity to all the parties. It is also expected from both the parties that they may cooperate to the trial Court in the proceedings without seeking any unnecessary adjournment, in view of the specific observation time and again by the Hon’ble Apex Court that the summons triable cases are required to be heard as expeditiously as possible. Therefore, separate mechanic is provided and separate Courts are established under the statute. Therefore, it is expected that all the concerned follows the statutory provision and cooperate to the Court concerned. It is also expected that the trial Court will decide the complaint as expeditiously as possible.