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2024 DIGILAW 397 (GUJ)

Chaudhari Dhiren Babulal v. State Of Gujarat

2024-02-28

M.K.THAKKER

body2024
JUDGMENT : 1. This appeal is filed under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ referred hereinafter) challenging the judgment and order of acquittal passed by the learned 10th Additional Judicial Magistrate First Class, Mahesana in Criminal Case No.8342 of 2009 dated 20.12.2023 acquitting the respondent for the charges punishable under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ referred hereinafter) by exercising the power under Section 256 of the Cr.P.C. 2. It is the case of the complainant that the complainant is doing the business of Amul, BSNL and Sky advertisement and the accused was serving as a stenographer at CBI Court, Ahmedabad, however, he was suspended from the Court and therefore, he was staying with the father at Mahesana. When the accused was serving at Gandhinagar, at that point of time with regard to the purchasing of the plot at Gandhinagar, Rs.10 Lakh was paid to the respondent-accused under the assurance that the sale deed would be executed in favour of the complainant, however, subsequent to the said transaction, the accused had shown unwillingness to execute the sale deed. Therefore, the amount which was paid towards the sale consideration was demanded back. On repetition of demand, cheque came to be issued in favour of the complainant by the accused on 01.05.2009 of Rs.10 Lakh with an assurance that on depositing the same, amount would be credited in the account of the complainant. On depositing the cheque with the Bank, it was returned with an endorsement of ‘fund insufficient’. After following the due procedure prescribed under the Act, private complaint came to be filed before the competent court at Mahesana. 3. Learned trial Court after recording the verification, issued the summons on 06.08.2009 thereafter the accused came to be appeared before the learned trial Court on 04.01.2010 and his plea came to be recorded below Exhibit 7 wherein he pleaded not guilty and claimed to be tried. Thereafter, the matter came to be adjourned on 11.02.2010, on that day the application was given by the accused seeking exemption which was granted and the matter was adjourned for the purpose of exhibiting the documents produced by the complainant. Thereafter, from 04.05.2010 the accused started to remain absent and therefore, Non-Bailable Warrant came to be issued which was not executed till the impugned order was passed. 3.1. Thereafter, from 04.05.2010 the accused started to remain absent and therefore, Non-Bailable Warrant came to be issued which was not executed till the impugned order was passed. 3.1. Thereafter, the matter came to be transferred to the learned 10th Additional Judicial Magistrate First Class vide order dated 19.06.2023 and again the non-bailable warrant came to be issued by the learned trial Court, which was also not executed. As the matter came to be transferred, the complainant was also not present therefore, on 10.10.2023 it was noted in the rojkaam that notice was issued to the complainant. On 20.12.2023 when the impugned order came to be passed, the learned advocate for the complainant remained absent, therefore, power was exercised under Section 256 of the Cr.P.C. and the complaint came to be dismissed for non-prosecution, which is impugned before this Court. 4. Heard the learned advocate Mr.Kamlesh Kotai for the applicant-original complainant and though the respondent-accused was represented through his pleader, namely, Mr.Riyaz Parmar, but he remained absent despite the matter was called out twice. 5. Learned advocate Mr.Kotai submits that from the year 2009 to 2023 almost on all occasions the complainant and his advocate remained present, however, when the matter came to be transferred before the learned 10th Additional Judicial Magistrate First Class on 19.06.2023 the complainant could not remained present because of the unawareness about listing of the matter. 5.1. Learned advocate Mr.Kotai submits that as the respondent-accused appeared once before the learned trial Court and his plea came to be recorded on 04.01.2010 thereafter, for 13 years the respondent-accused did not remain present neither the non-bailable warrant, which is issued was executed. Learned advocate Mr.Kotai submits before this Court that the respondent No.2 was though represented through his advocate, but here also the respondent No.2 remained absent, which shows that accused had lost his interest in the proceedings pending before the Court of law. 5.2. Learned advocate Mr.Kotai submits that it is true that the complainant and his advocate did not remain present for six constitutive dates, but though it is observed by the learned trial Court that notice to the complainant be issued, but the same has not been issued nor served to the complainant. 5.2. Learned advocate Mr.Kotai submits that it is true that the complainant and his advocate did not remain present for six constitutive dates, but though it is observed by the learned trial Court that notice to the complainant be issued, but the same has not been issued nor served to the complainant. Learned advocate Mr.Kotai submits that as the stage of trial is of the execution of the non-bailable warrant and from the year 2010 accused remained absent though his plea was recorded therefore, instead of dismissing the complaint, learned trial Court ought to have decided the case on merits. 5.3. Learned advocate Mr.Kotai submits that he would cooperate with the trial and would see that the criminal case be concluded without any further delay and he prays to pass an order to restore the criminal case to its original file on condition to deposit the cost which may be ordered by this Court. 5.4. Learned advocate Mr.Kotai prays that as the impugned order was passed without giving opportunity of leading the evidence and in view of the time barred litigation, the impugned order deserves to be set aside and criminal complaint is required to be restored to its original file. 6. 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, is 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 non-appearance of the complainant is due to his death.” 7. (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.” 7. 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. 8. Considering the record, it transpires that the trial is pending since 2009, once the accused appeared and plea came to be recorded he had chosen not to appear before the Court and therefore, non-bailable warrant came to be issued time to time, however, the same also remained unexecuted. From the rojkaam it transpires that, up to 11.04.2023 the complainant remained present, however, thereafter once it was adjourned on the ground that the complainant remained absent and subsequent to that date the criminal case came to be transferred to the learned 10th Additional Judicial Magistrate First Class. 9. Submissions made by the learned advocate Mr.Kotai for the appellant that though notice came to be issued and same remained unserved appears to be incorrect in view of the fact that in the record and proceedings there is an endorsement of the Police Constable, Mahesana City Police Station that summons was served to the complainant and he was instructed to remain present on the next date of hearing. Thereafter, again the learned trial Court has issued the notice on 27.10.2023 however, the same remained unserved and the impugned order came to be passed. 10. Thereafter, again the learned trial Court has issued the notice on 27.10.2023 however, the same remained unserved and the impugned order came to be passed. 10. It is true that the burden is on the complainant to remain present after setting the criminal law in motion, but as from the record, it transpires that the criminal case came to be adjourned for securing the presence of the respondent-accused then the learned trial Court could have decided the case on merits instead of this technical dismissal. 11. When the complainant was present on number of dates fixed in the case and the criminal case came to be adjourned because of non-execution of the non-bailable warrant, dismissal of the complaint for non-appearance of the complainant on six consecutive dates was not proper, where the evidence of the complainant has yet to be recorded, non-bailable warrant against the accused was pending and instead of passing the order under Section 256 of the Cr.P.C., the learned trial Court could have proceed with the matter by adopting the mode to dispense the presence of the complainant. Therefore, this Court is of the view that impugned order is required to be set aside on the condition to deposit the cost of Rs.10,000/with the Registry of this Court. 12. Resultantly, this appeal is allowed. The impugned judgment and order of acquittal passed by the learned 10th Additional Judicial Magistrate First Class, Mahesana in Criminal Case No.8342 of 2009 dated 20.12.2023 acquitting the respondent for the charges punishable under Section 138 of the Negotiable Instruments Act, 1886 is quashed and set aside. The proceeding shall stand restored to its original number on the file of the learned Magistrate and prosecution shall now proceed from the stage when the order of the acquittal was passed. The complainant is directed to deposit cost of Rs.10,000/before the Registry of this Court within a period of two weeks from the date of the order and on depositing the same, the Registry shall disburse the same in the account of Shishu Gruh Paldi, Ahmedabad by electronic mode. 13. As this criminal case is pending since 2009, the learned trial Court is directed to expedite the same and to dispose within a period of four month from the date of receipt of a copy of this order. 14. 13. As this criminal case is pending since 2009, the learned trial Court is directed to expedite the same and to dispose within a period of four month from the date of receipt of a copy of this order. 14. It is needless to say that no any unnecessary adjournments would be sought for before the learned trial Court and both the parties would cooperate with the trial and to see that matter is concluded without any further delay.