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2024 DIGILAW 498 (GUJ)

Salimbhai Ilyasbhai Vora v. State Of Gujarat

2024-03-12

M.K.THAKKER

body2024
JUDGMENT : 1. This appeal is filed by the appellant-original complainant under Section 378 of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ referred hereinafter) challenging the impugned judgment and order of acquittal dated 07.10.2023 passed in Criminal Case No.588 of 2013 by the learned 2nd Additional Chief Judicial Magistrate, Anand. 2. It is the case of the complainant that the complainant was doing business of transportation and the accused had conveyed that he is the owner of the vehicles which were hired for transportation of cotton bundle from P.B.M Polytex Ltd, Cochin, Kerala. An advance amount was paid to the accused of Rs.1,26,000/- towards the rent which was misused by the respondent-accused. On demanding the cheque amount as instead of depositing with the vehicle owner, he had utilized it for his personal expenses. The cheque bearing no. 023325 for an amount of Rs.80,000/- was issued in favour of the complainant being namely South India Roadlines and on discerning the same, after following the due procedure under the Negotiable Instruments Act, 1881 (‘the N.I. Act’ referred hereinafter), a private complaint came to be filed being Criminal Case No.588 of 2013. 3. The learned trial court has issued summons after recording verification. However, as observed in the impugned judgement and order of acquittal, summons and warrants were not served to the respondent-accused. Therefore, complaint came to be dismissed by exercising the powers under section 256 of Cr.P.C. which is the subject matter of challenge. 4. Heard learned advocate Mr.Ankit Bachani for the appellant-original complainant and though endorsement on the Cause List shows that Rule duly served in the application for seeking leave to prefer an appeal but respondent has chosen not to appear either in person or through an advocate. 5. Learned advocate Mr.Bachani has drawn the attention of this Court with regard to the entries in the rojkam and submitted that learned advocate for the complainant had remained present on almost all dates and on the day when the impugned judgment and order was passed, the learned advocate did remain present. The learned trial Court dismissed the complaint by observing that complainant is remaining absent. Leaned advocate Mr. Bachani submits that stage of the complaint is to secure the presence of the respondent-accused and therefore, even if the complainant remains absent, proceedings cannot be said to have been struck because of the non remaining present of the complainant. The learned trial Court dismissed the complaint by observing that complainant is remaining absent. Leaned advocate Mr. Bachani submits that stage of the complaint is to secure the presence of the respondent-accused and therefore, even if the complainant remains absent, proceedings cannot be said to have been struck because of the non remaining present of the complainant. 5.1 Learned Advocate Mr Ankit Bachani submits that when the personal attendance of the complainant is not necessary then learned trial Court instead of dismissing the complaint for non prosecution could have adjourned the matter or could have proceeded further. Without doing so, the learned trial Court has dismissed the complaint for non prosecution. Learned advocate Mr Ankit Bachani submits that the address which is mentioned in the complaint is the very address which is stated in the appeal memo and the proceeding which is pending before this Court showing that Rule duly served on the same matter. However, despite various summons and warrants the service could not be completed on the address which is mentioned in the complaint. Learned advocate Mr. Ankit Bachani submits that this conduct of the respondent- accused shows that though he is having the knowledge of the proceedings somehow he managed the service of the summons and he did not appear before the learned trial Court. 5.2 Learned advocate Mr Ankit Bachani submits that the proceedings arising from section 138 of the N.I. Act is time barred litigation and on dismissing the complaint, the complainant has been left remediless. Therefore, learned advocate Mr Bachani prays to quash the impugned judgment and order of the acquittal and prays to restore the criminal case in 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 judgment and order is passed is required to be re-looked. Section 256 of the Cr.P.C is reproduced herein below:- “256. Non- appearance or death of complainant. 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 judgment and order is passed is required to be re-looked. Section 256 of the Cr.P.C 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. That two constraints are imposed on the Court for exercising the powers under Section 256 of the Cr.P.C. 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 respondent-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. Keeping in mind the above provisions, if the instant case is to be examined then it comes from the rojkam that various notices and summons were issued to the respondent-accused but same remained unserved. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice. 8. Keeping in mind the above provisions, if the instant case is to be examined then it comes from the rojkam that various notices and summons were issued to the respondent-accused but same remained unserved. It further transpires from the rojkam that on each and every date the learned advocate for the complainant remained present and the stage of the complaint is service of the summons to the respondent-accused. It comes from the record that because of the non appearance of the respondent-accused the complaint is dismissed. 9. On 04.10.2023, entry in the rojkam shows that non-bailable warrant was issued and the same was sent to the DSP Office, Godhra for execution and to secure the presence of the respondent-accused. On the subsequent date i.e on 07.10.2023 when the impugned judgment and order of acquittal was passed, nothing is mentioned with regard to the service of non-bailable warrant which was issued by the learned trial Court on 04.10.2023. Learned trial Court instead of dismissing the complaint for non prosecution could have decided the matter on merits after giving opportunity to the learned advocate of the complainant to lead the evidence before the learned trial Court. 10. In a case under section 138 of N.I. Act, it is always the complainant who is at stake for his money which ought to have been paid through a cheque. Unfortunately, the cheque in question was dishonoured and under such circumstances, the complaint should not have been dismissed immediately and the Court ought to have adopted the course to adjourn the case for hearing to some other day under the provisions of section 256 of Cr.P.C. or grant exemption to the complainant on a particular day for his non appearance. 11. When learned trial Court has issued the non-bailable warrant to secure the presence of the respondent-accused, then without waiting for the service of the warrant, the learned trial Court ought not have passed judgment and order of acquittal. Principle of natural justice requires that due opportunity is to be given to the parties who has knocked the doors under the expectation that his grievance would be redressed. 12. Principle of natural justice requires that due opportunity is to be given to the parties who has knocked the doors under the expectation that his grievance would be redressed. 12. In view of the above, this Court is of the view that the impugned judgment and order of acquittal requires interference with and same is required to be quashed and set aside. 13. Resultantly, this appeal is allowed. The judgment and order passed by the learned trial Court dated 07.10.2023 is quashed and set aside. Criminal Case No. 588 of 2013 is ordered to be restored to its original file. As the complaint is pending since 2013, the learned trial Court is directed to conclude the proceedings as expeditiously as possible. Record and proceedings be sent back to the concerned Court, forthwith.