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2024 DIGILAW 562 (GUJ)

Kanubhai Dalabhai Ghatadiya v. State of Gujarat

2024-03-18

M.K.THAKKER

body2024
JUDGMENT : 1.Since the issue raised in these appeals are similar, they are being decided by a common judgment. The facts of the criminal appeal No.665 of 2024 are taken for the purpose of adjudication. 2. 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 passed by the learned Chief Judicial Magistrate First Class, Galteshwar at Sevaliya dated 25.09.2023 dismissing the complaint filed under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ referred hereinafter) by exercising the powers under Section 256 of the Cr.P.C. 3. It is the case of the complainant that the complainant and the accused are relatives and were having family relations with each other. On 16.01.2018 accused came to the house of the complainant and demanded the amount of Rs.4 Lakh as a hand loan and it was conveyed that as huge loss occurred in the transport business and therefore, he is in need of money. The complainant had lent the amount of Rs.4 Lakh with an assurance that the said amount would be returned within a period of six months from the date of lending the money. 3.1. To repay the amount after making various demands, the cheque bearing No.046217 of Rs.2,10,000 and cheque bearing No.046219 for the amount of Rs.1,90,000/- was issued in favour of the complainant. On depositing the cheque with the Bank, the same was returned with an endorsement of ‘account closed’. After following the procedure prescribed under the N.I.Act, the complainant has filed separate complaint for each cheque I.e Criminal Case No.258 of 2019 and Criminal Case No.259 of 2019. 3.2. On recording the verification in both the complaints, summons came to be issued under Section 204 of the Cr.P.C. on 18.03.2019, making it returnable on 15.04.2019. Though summons was served to the wife and father, but the respondent-accused did not appear before the learned trial Court and therefore by impugned judgment and order dated 25.09.2023 the trial Court had dismissed the complaint for non-prosecution on the ground that though summons were issued, but the complainant remained failed in service of the summons and there was no fresh address furnished by the complainant therefore, the powers under Section 256 of the Cr.P.C. were exercised, which is the subject matter of the challenge before this Court. 4.Heard learned advocate Mr.Keval Brahmbhatt for the appellant and learned advocate Mr.K.K.Maghnani for the respondent No.2. 5.Learned advocate Mr.Keval Brahmbhatt for the appellant submits that, address which is mentioned in the criminal complaint is the same address which is stated before this Court in the cause title of the criminal appeal and before the learned trial Court for four years the respondent-accused had managed the service of summons however, on the said address respondent No.2 was served and represented through his pleader. Learned advocate Mr.Brahmbhatt submits that, there was a statement recorded by the wife in Criminal Case No.258 of 2019 wherein the wife, namely, Jyotikaben had stated on 23.11.2022 before the Head Constable, Sathamba Police Station that the husband i.e. the respondent No.2accused is doing the work of driving and at present he is on his work and after he would reach home, she would ask the husband to remain present before the learned trial Court. 5.1. Learned advocate Mr.Brahmbhatt submits that, even the statement which was recorded prior to that date i.e. on 23.03.2021 of Jivabhai Parmar, who is the father of the respondent No.2 stating that he was informed about all the proceedings pending before the learned trial Court against his son, namely, Narendrabhai and on that day he was out of the house therefore, it was stated by the father that on returning he would inform his son with regard to the pendency of the proceedings. 5.2. Learned advocate Mr.Brahmbhatt submits that, though the respondent-accused was having the knowledge with regard to the pendency of proceedings, but some how he managed the service of the summons and did not remain present before the learned trial Court and because of the absence, the learned trial Court has dismissed the complaint for non-prosecution. 5.3. Learned advocate Mr.Brahmbhatt has drawn the attention of this Court with regard to the application filed by the learned advocate for the complainant below Exhibit 15 in Criminal Case No.259 of 2019 wherein the request was made to serve the summons through DSP, Aravalli. 5.4. Learned advocate Mr.Brahmbhatt submits that, on the day when the impugned judgment and order was passed, this application below Exhibit 15 was rejected on the ground that the complainant failed to furnish fresh address of the respondent No.2accused though providing sufficient opportunity and therefore, the application is not required to be granted. 5.5. 5.4. Learned advocate Mr.Brahmbhatt submits that, on the day when the impugned judgment and order was passed, this application below Exhibit 15 was rejected on the ground that the complainant failed to furnish fresh address of the respondent No.2accused though providing sufficient opportunity and therefore, the application is not required to be granted. 5.5. Learned advocate Mr.Brahmbhatt submits that, on the very same day i.e. on 25.09.2023 learned trial Court has dismissed the complaint for non-prosecution on the same ground. Learned advocate Mr.Brahmbhatt submits that, almost on all occasions, learned advocate has remained present and on the day when the impugned judgment and order was passed, learned advocate for the complainant remained present and as the stage of the trial, for securing the presence of the respondent No.2, the complainant did not remain present. 5.6. Learned advocate Mr.Brahmbhatt submits that, there was no fresh address as from the record father and wife had stated that the respondent No.2 was out of house, however learned trial Court did not consider this statement and demanded the fresh address of the respondent No.2 and non-furnishing the fresh address, the impugned judgment and order of the acquittal was passed, which is required to be interfered with. 5.7. Learned advocate Mr.Brahmbhatt submits that, though this complaint was filed in the year 2019, for four years the respondent No.2 did not appear before the learned trial Court and though there was no fault on the part of the complainant, this impugned judgment and order of acquittal was passed. Learned advocate Mr.Brahmbhatt prays to set aside the impugned judgment and order of the acquittal which was passed on technical ground and prays to pass an order to restore the criminal case to its original file. 6.On the other hand, learned advocate Mr.Maghnani for the respondent No.2accused has filed affidavit of the respondent No.2accused stating that ‘I am professional driver and serving as driver. Due to driving, mostly and maximum period I am living out of station. Respondent No.2 has also stated in the affidavit that, there were no good relations and term with his father and respondent No.2 is staying with his family at Ahmedabad since 2019 and occasionally visiting Sathamba. It is further stated that the complainant is relative of the respondent No.2 and having knowledge with regard to fresh address at Ahmedabad as he had already visited the residence of the respondent– accused at Ahmedabad. It is further stated that the complainant is relative of the respondent No.2 and having knowledge with regard to fresh address at Ahmedabad as he had already visited the residence of the respondent– accused at Ahmedabad. It is stated that he is not having the knowledge with regard to the pendency of the proceedings neither having knowledge about the summons or notice issued by the learned trial Court and therefore, he did not appear before the learned trial Court. 6.1. Learned advocate Mr.Maghnani submits that during the four years i.e. pendency of the criminal case before the learned trial Court, the complainant remained absent continuously and he failed in serving the summons to the respondent No.2accused therefore, the learned trial Court has rightly exercised the powers by dismissing the complaint for non-prosecution. 6.2. In view of above submissions, learned advocate Mr.Maghnani submits that, no interference is required and the complaint is required to be dismissed. 7.Considering the submissions made by the learned advocates for the respective parties as well as considering the records, which is part of the appeals, it transpires that the summons/warrant though served to the wife and for that statement was recorded by the police officer on 23.11.2022 of the wife, namely, Jyotikaben, the respondent No.2 did not appear before the learned trial Court. The false affidavit is filed by the respondent No.2 stating that I am living at Ahmedabad since 2019. From the statement which was recorded of Jyotikaben dated 23.11.2022 she did not state anything with regard to shifting at Ahmedabad and the statement was recorded where the address is mentioned of Sathamba, Taluka Bayad, District Aravalli. It is informed by the wife to the Unarmed Head Constable, Sathamba Police Station that the husband is at present on his service i.e. driving and on reaching the house she would inform him. Respondent No.2accused did not dispute in his affidavit that Jyotikaben is not his wife neither stated with regard to any strain relation with the wife or he is not staying with his wife. 8.To misguide this Court, this affidavit appears to have been filed. This Court could have taken action against the respondent No.2 for filing false affidavit and to misguide the Court, but looking to the original case i.e. pending since 2019, this Court deems it fit not to go ahead with the false affidavit filed before this Court. 8.To misguide this Court, this affidavit appears to have been filed. This Court could have taken action against the respondent No.2 for filing false affidavit and to misguide the Court, but looking to the original case i.e. pending since 2019, this Court deems it fit not to go ahead with the false affidavit filed before this Court. 9.Keeping this issue as it is, on examining the merits of the case, this Court finds that on the day when the impugned judgment and order of acquittal was passed, the learned advocate has preferred an application below Exhibit 15 praying to direct the DSP to serve the summons to the respondent No.2. The said application below Exhibit 15 was rejected by the leaned trial Court on 25.09.2023 on the ground that though sufficient opportunity provided to furnish the fresh address, the complainant remained failed in furnishing the address and therefore, no further time requires to be granted. On the same ground, the complaint was also dismissed by exercising the powers under Section 256 of the Cr.P.C. Learned trial Court has not stated with regard to the presence of the complainant or his learned advocate. 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, 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.” 11. (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.” 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 powers 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. It is also not in dispute that address which was shown in the appeal memo is the same address, which was stated in the complaint. Before this Court, the respondent No.2 was represented through his pleader however, before the learned trial Court for four years, he did not remain present or he managed service of the summons some how. 13. In a case under Section 138 of the Negotiable Instruments Act, 1881, it is always complainant who is at stake for his money which ought to have paid through the cheuqe. Unfortunately, the cheque in question was dishonored. Under such circumstances, a complaint should not have been dismissed immediately and Court ought to have adopted the course to adjourn the case for hearing to some other day under provision of Section 256 of the Cr.P.C. When the trial Court was having the statement of the wife of the respondent-accused recorded on 23.11.2022, learned trial Court could have issued the bailable/non-bailable warrant instead of dismissing the complaint for non-prosecution. Principle of natural justice required that due opportunity is to be given to the parties to adduce their evidence and thereafter the matter is to be decided on merits. 14. Principle of natural justice required that due opportunity is to be given to the parties to adduce their evidence and thereafter the matter is to be decided on merits. 14. Noticing the facts, this Court finds that there was no fault on the part of the present applicant as the address, which was mentioned in the complaint is the only address therefore, no fresh address was required to be furnished. Considering the same, present appeal requires to be allowed and judgment and order of acquittal is required to be set aside. 15. Resultantly, these appeals are allowed. The impugned the judgments and orders dated 25.09.2023 passed by the learned Chief Judicial Magistrate First Class, Galteshwar at Sevaliya in Criminal Case Nos.258 and 259 of 2019 are quashed and set aside. Record and proceedings be sent back to the learned trial Court concerned, forthwith. 16. As this criminal case is pending since 2019 before the learned trial Court, the learned trial Court shall expedite the hearing of the criminal cases after providing the due opportunity to both the parties and to see that criminal cases be decided within a period of four months from today. 17. Learned advocate Mr.Maghnani for the respondent-accused submits that he would appear before the learned trial Court on 01.04.2024. Learned trial Court shall record the presence of the parties and proceed with the matter in accordance with law.