Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 716 (GUJ)

Mahant Anandpuri v. State Of Gujarat

2024-04-02

M.K.THAKKER

body2024
JUDGMENT 1. This appeal is filed challenging the judgment and order dated 25-05-2023 passed by learned Additional Judicial Magistrate First Class, Himmatnagar below Exh.1 in criminal case No.4218 of 2022 whereby power under section 256 of the Cr.P.C. was exercised and respondent- accused were acquitted from the offence punishable under section 138 of the Negotiable Instruments Act (hereinafter referred to as the NI Act). 2. It is the case of the complainant that, complainant is running “Gaushala” and managing the Ashram by keeping cattle. The respondent-accused are doing labour work in the said “Gaushala”. As they were in need of financial assistance, an amount of Rs.2,00,000/- was demanded from the complainant which was lent and in lieu of the re-payment of the aforesaid amount, cheque bearing No.021973 dated 25-03-2022 was issued for the amount of Rs.2,00,000/-. 2.1. On depositing the same cheque it was returned with an endorsement of “Funds Insufficient”, therefore after following the due procedure under the NI Act a private complaint came to be filed before the learned competent Court. 2.2. Learned Trial Court has issued the summons to the respondent-accused vide order dated 11-05-2022 and the respondent-accused appeared and his plea came to be recorded below Exh.07 on 22-12-2022. Accused had pleaded not guilty and claimed to be tried, therefore chief examination of the complainant was recorded below Exh.10 and thereafter matter was posted for cross examination of the complainant. In the impugned order which was passed on 25-05-2023, the learned Trial Court has observed that accused appeared on 27-11-2022, however the case was adjourned for recording of plea on 22-12-2022, on that day the complainant and his Advocate were absent, but as the accused was present his plea came to be recorded. 2.3. Thereafter the case was posted for evidence of the complainant on 02-02-2023 and on that day neither the complainant nor his advocate remained present, therefore the case came to be adjourned on 16-02-2023. On 16-02-2023, the complainant and his advocate remained absent in the first round, therefore the date was posted in the “Rojkaam”. However thereafter the learned Advocate for the complainant remained present and he produced a list of documents. 2.4. Thereafter case was further posted on 10-03-2023. Again on 10-03-2023, learned Advocate for the complainant and the complainant remained absent, therefore the case was adjourned on 20-04-2023. However thereafter the learned Advocate for the complainant remained present and he produced a list of documents. 2.4. Thereafter case was further posted on 10-03-2023. Again on 10-03-2023, learned Advocate for the complainant and the complainant remained absent, therefore the case was adjourned on 20-04-2023. On that day also the same situation occurred and therefore learned Trial Court has posted the case on 25-05-2023 and the impugned judgment and order came to be passed, dismissing the complaint for non- prosecution which is the subject matter of challenge before this Court. 2.5. Heard learned Advocate Mr.M.S.Patel for the appellant-original complainant and though rule is served in the application for seeking leave to prefer an appeal, respondent has chosen not to appear before this Court. 2.6. Learned Advocate Mr.M.S.Patel submits that, after the summons came to be issued it was informed by the learned Advocate for the complainant that as and when his presence would be required he would inform. However the learned Advocate did not remain present before the learned Trial Court and matter came to be dismissed for non prosecution. 2.7. Learned Advocate submits that due to absence of the learned Advocate for the complainant, the fair case of the complainant was suffered as this litigation under section 138 of the NI Act are time barred litigation and due to the impugned judgment and order of the acquittal on technical grounds, appellant was left remediless from recovering the amount of cheque from respondent-accused. 2.8. Learned Advocate submits that, as the case is pending since 2022 and if this Court would quash the impugned judgment and order and order to restore the criminal case to its original file, then no further adjournment would be sought and the trial would be concluded without further delay. 2.9. In view of the above submissions learned Advocate prays to quash the impugned judgment and order of the acquittal and order to restore the criminal case to its original file. 3. Considering these submissions advanced by the learned Advocate for the appellant and record and proceedings, it appears that learned Trial Court has recorded the absence of the complainant and his learned Advocate on 10-03-2023, 20-04-2023 and 25-05-2023 when the impugned judgment and order was passed. 3. Considering these submissions advanced by the learned Advocate for the appellant and record and proceedings, it appears that learned Trial Court has recorded the absence of the complainant and his learned Advocate on 10-03-2023, 20-04-2023 and 25-05-2023 when the impugned judgment and order was passed. From the record, it transpires that on 16-02-2023, initially the absence of the learned Advocate for the complainant and the complainant was recorded, however subsequently on appearance of the learned Advocate for the complainant the documents was exhibited below Exh.09, 10 and 11 and the case was posted for cross-examination of the complainant. Prior to that from the “Rojkaam” it transpires that, no absence or presence of the learned Advocate for the complainant or the complainant was recorded, therefore it reveals that for two consecutive dates, when the complainant and his advocate remained absent, the learned Trial Court has passed impugned judgment and order of the acquittal. 4. 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 nonappearance of the complainant is due to his death.” 5. 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. 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. 6. It is true that learned Advocate for the complainant did not remain present for two consecutive dates, however instead of dismissing the complaint, learned Trial Court could have adopted other course provided under section 256 of the Cr.P.C. by adjourning the case of by issuing the warrant or the summons to the complainant. As the principal of natural justice requires that due opportunity is to be given to the parties to adduce and produce the respective evidence before the Court and the case is required to be decided on merits. 7. In view thereof, this Court deems it fit to allow this appeal and quash the impugned judgment and order of the acquittal. At the same time the learned Advocate for the complainant did not remain present for two occasions before the learned Trial Court, therefore appropriate cost is also required to be imposed to the complainant. 8. It is submitted by the learned Advocate that at the time of issuing the notice, the amount of Rs.5,000/- was directed to be deposited towards the cost, which is deposited with the registry of this Court. In view of that the appellant shall deposit amount of Rs.10,000/- with the registry of this Court within a period of two weeks from the date of order. In turn, the Registry shall remit the same in the account of the Shishu Gruh Paldi, by electronic mode.” 9. Resultantly this appeal is allowed. In view of that the appellant shall deposit amount of Rs.10,000/- with the registry of this Court within a period of two weeks from the date of order. In turn, the Registry shall remit the same in the account of the Shishu Gruh Paldi, by electronic mode.” 9. Resultantly this appeal is allowed. The judgment and order dated 25-05-2023 passed by learned Additional Judicial Magistrate First Class, Himmatnagar below Exh.1 in criminal case No.4218 of 2022 is quashed and set aside. The proceedings shall stand restored to their 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. 10. It is needless to clarify that no unnecessary adjournment would be sought by the learned Advocate for the appellant and we would undertake that criminal case is concluded without any further delay.