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2024 DIGILAW 290 (GUJ)

Bhaveshbhai Ratilalbhai Gohil v. State Of Gujarat

2024-02-13

M.K.THAKKER

body2024
JUDGMENT : 1. This appeal is filed under Section 378 of the Code of Criminal Procedure challenging the judgment and order of acquittal dated 28.03.2023 passed by the learned Principal Senior Civil Judge & Additional Chief Judicial Magistrate, Palitana in Criminal Case No.3226 of 2021 by which, the criminal complaint came to be dismissed which was filed under Section 138 of the Negotiable Instruments Act. 2. The present appellant is the original complainant who has filed a private complaint before the learned Principal Senior Civil Judge & Additional Chief Judicial Magistrate, Palitana alleging that the complainant is doing the business of selling the construction material and the accused is the contractor and doing the business in the name and style of ‘Vivek Construction’. For the goods, which were purchased by the respondent – accused from the complainant, the cheque bearing no.184502 of the Bank of India for the amount of Rs.50,000/- was issued in favour of the complainant and on depositing the same, the cheque was dishonoured with an endorsement ‘insufficient fund’. Therefore, after following the procedure prescribed under the Act, the private complaint came to be filed before the competent Court under Sections 138 and 142 of the Negotiable Instruments Act. 3. On recording the verification, the learned trial Court has issued summons under Section 204 of the Code of Criminal Procedure on 08.12.2021, making it returnable on 21.02.2022. The respondent – accused appeared before the learned trial Court and his plea came to be recorded below exh.9 on 25.05.2022. Thereafter, from time to time, the matter was adjourned. The learned advocate, who was appearing for the complainant has expired on 25.06.2022 and as the complainant did not procure the papers from the family members of the learned advocate, he could not remain present before the learned trial Court, therefore, the learned trial Court had issued notice on 01.10.2022 informing the complainant to remain present. On receiving the notice on 05.11.2022, the complainant remained present and filed an application seeking adjournment on the ground that the papers are not received from the family members of the learned advocate and he wants to engage the another advocate. Therefore, time was sought which was granted by the learned trial Court. On receiving the notice on 05.11.2022, the complainant remained present and filed an application seeking adjournment on the ground that the papers are not received from the family members of the learned advocate and he wants to engage the another advocate. Therefore, time was sought which was granted by the learned trial Court. Thereafter, again, the complainant and his advocate remained absent for 4 consecutive dates, therefore, application was filed by the respondent – accused below exh.12 praying to dismiss the complaint by exercising the powers under Section 256 of the Code of Criminal Procedure. The learned trial Court has dismissed the complaint for non-prosecution. Thereafter, on the same day i.e. on 28.03.2023, around 1:25 hrs., the complainant appeared and filed application below exh.13 requesting the Court that though the complainant was present on 30.01.2023, his presence was not recorded in the rojkam and on the day when the impugned order was passed at 1:25 hrs., the complainant came before the learned trial Court and he was informed that around 12:00 o’clock, the complaint came to be dismissed. 4. Thereafter, by filing an application below exh.13, the complainant requested the learned trial Court that the order of dismissal is not uploaded on the website and, therefore, his presence be considered and his cross-examination be concluded. The complainant has also requested that his advocate was present at 1:25 hrs. however, despite the same, order of dismissal was passed. The aforesaid application was also rejected on the same date i.e. on 28.03.2023 observing that though the summons was issued on 05.11.2022, neither the complainant nor his advocate remained present and the stage of trial was of cross-examination of the complainant, therefore, because of not remaining present, the proceedings were stuck. 5. Being aggrieved and dissatisfied with the aforesaid order of dismissal dated 28.03.2023, this appeal is filed by the complainant. 6. Heard learned advocate Mr.Chintan Gandhi for the complainant and learned advocate Mr.Rajesh Gidiya for the respondent – accused. 7. Learned advocate Mr.Gandhi submits that on receiving the summons from the learned trial Court, the complainant remained present and submitted the learned trial Court that his advocate expired on 25.06.2022 and, therefore, he was not having the knowledge with regard to the proceedings and the dates before the learned trial Court. 7. Learned advocate Mr.Gandhi submits that on receiving the summons from the learned trial Court, the complainant remained present and submitted the learned trial Court that his advocate expired on 25.06.2022 and, therefore, he was not having the knowledge with regard to the proceedings and the dates before the learned trial Court. The learned advocate submits that though the complainant remained present on 30.01.2023, his presence was not recorded and thereafter, only on one occasion i.e. on 27.02.2023, the complainant did not remain present in absence of the papers, which was explained in the application below exh.13 however, without considering the same, the learned trial Court has passed the judgment and order of acquittal. 8. The learned advocate submits that before exercising the powers, the learned trial Court ought to have considered the reasons and ought to have considered the fact that whether the complainant was remained absent in good faith or not? The learned advocate submits that for an offence under Section 138 of the Negotiable Instruments Act, there is no remedy available for the complainant, when the complaint is dismissed for default in view of the limitation prescribed. The learned advocate submits that immediately after dismissal i.e. at 12:00 hrs., the complainant as well as his advocate appeared and filed an application below exh.13 and made a request to the Court to consider the presence of the complainant and his advocate and also shown readiness and willingness to complete the cross-examination however, the learned trial Court, instead of taking the practical approach, had dismissed the complaint for non-prosecution. The learned advocate submits that because of the dismissal, the complainant who is having the fair case, is suffered and, therefore, it is prayed to quash the impugned order and order to restore the complaint to its original file. 9. On the other hand, learned advocate Mr.Gidia for the respondent – accused submits that in the impugned order, the learned trial Court has observed that on summons being issued, the complainant remained present on 05.12.2022 however, thereafter, he again remained absent and, therefore, the learned trial Court has rightly exercised the powers dismissing the complaint for non-prosecution. The learned advocate prays not to interfere with the impugned order and dismiss the appeal. 10. The learned advocate prays not to interfere with the impugned order and dismiss the appeal. 10. Considering the submissions advanced by the learned advocates for the respective parties and before going into the merits, the provisions under which, the impugned order is passed, are required to be relooked. Section 256 of the Code of Criminal Procedure is reproduced herein below:- “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 nonappearance of the complainant is due to his death.” 11. That two constraints are imposed on the Court for exercising the powers under Section 256 of the Code of Criminal Procedure. First is if the Court thinks that in a situation it is proper to adjourn the hearing, then the Magistrate shall not acquit the respondent – accused. Second is when the Magistrate considers that personal attendance of the complainant is not necessary on that day, the Magistrate has power to dispense with the attendance and proceed with the case. 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. 12. Keeping in mind the above provisions, if now, the merit is to be examined, it transpires from the record that the order under Section 256 of the Code of Criminal Procedure was passed on 28.03.2023. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice. 12. Keeping in mind the above provisions, if now, the merit is to be examined, it transpires from the record that the order under Section 256 of the Code of Criminal Procedure was passed on 28.03.2023. From the rojkam, it transpires that prior to that date i.e. on 27.02.2023, neither the complainant nor his advocate nor the accused or his advocate remained present. Before that i.e. on 30.01.2023, the absence of the complainant and his advocate was recorded. Before that also, for two consecutive dates, same position was there, when the complainant and his advocate were remained absent. The rojkam reflects that on 05.11.2022, on receiving the summons, the complainant was present and the trial was adjourned for the purpose of cross-examination of the complainant. The learned advocate has drawn attention of this Court to the application exh.13 which was filed by the complainant on the same day i.e. on 28.03.2023. Considering the averments made in the application, it appears that the complainant has stated that learned advocate Mr.K.P. Bheda, who was engaged by the complainant, has expired on 25.06.2022. It is further contended in the application that on 30.01.2023, though the complainant was present, his absence was recorded and as the complainant could not procure the papers from the family members of the earlier advocate, he could not engage the another advocate. Thereafter, the complainant engaged advocate, namely, Mr.J.M. Gohil, who reached the Court at 1:25 hrs. and on making the inquiry, he was informed that the complaint came to be dismissed at around 12 hrs. in noon. 13. The complainant had stated in the application that the said order was not uploaded on the website, therefore, he requested to consider the presence and complete the crossexamination however, the same was also rejected by the learned trial Court by separate order. The reason which is mentioned for not remaining present is that the advocate, namely, Mr.K.P. Bheda expired and to procure the papers from the family members of the learned advocate, two dates were taken by the complainant. The reason which is mentioned for not remaining present is that the advocate, namely, Mr.K.P. Bheda expired and to procure the papers from the family members of the learned advocate, two dates were taken by the complainant. The learned trial Court, instead of dismissing the complaint at early hours, could have waited for the complainant and his advocate or could have considered the application below exh.13 which was filed wherein, it is contended that the order was not uploaded, which means that it must not have signed however, instead of taking the practical approach, the learned trial Court has dismissed the complaint for non-prosecution. 14. The discretion of Section 256 of the Code of Criminal Procedure is to be exercised fairly and judicially without impairing the cause of administration of criminal justice which should be spelt out from the order of the Court. 15. Therefore, this Court is of the view that the complaint is required to be restored to its original file and the same is required to be decided on merits after giving due opportunity to the parties to lead their respective evidence and make their submissions on merits. 16. Resultantly, this appeal is allowed. The impugned order dated 28.03.2023 passed by the learned Principal Senior Civil Judge & Additional Chief Judicial Magistrate, Palitana in Criminal Case No.3226 of 2021 is quashed and set aside. The criminal case is ordered to be restored to its original file. Both the parties are directed not to take any unnecessary adjournment so, the trial may not be delayed further. 17. Record and Proceedings be sent back to the concerned learned trial Court forthwith.