Hareshkumar Mansukhlal Vithalani v. State of Gujarat
2024-04-03
M.K.THAKKER
body2024
DigiLaw.ai
JUDGMENT : M.K. THAKKER, J. 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 dated 27.02.2023 passed by the learned Presiding Officer Special N.I. Act Court, Rajkot in Criminal Case No. 10103 of 2018, whereby the learned trial Court has exercised the power under Section 256 of the Cr.P.C. and dismissed the complaint and acquitted the respondent-accused from the offence punishable under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I. Act’ hereinafter). 2. It is the case of the complainant that the complainant and the respondent-accused were friends and for the development of the business, the complainant lent the amount of Rs. 4 Lakh through RTGS to the respondent-accused on 04.03.2017. On repeated demand, the cheque bearing No. 019671 of Rs. 4 Lakh was issued dated 10.04.2018. On depositing the cheque with the Bank, it was returned with an endorsement ‘fund insufficient’ and therefore, after following the due procedure under the N.I. Act, a private complaint came to be filed. 2.1. Learned trial Court after recording the verification issued the summons to the respondent-accused vide order dated 10.08.2018, making it returnable on 08.01.2019. Thereafter, the matter was adjourned time to time and respondent- accused appeared and his plea was recorded below Exhibit 7 on 04.07.2019 and on that day the application below Exhibit 8 was filed by the complainant praying to deposit 20% amount of the cheque with the learned trial Court. The said application remained pending till the impugned judgment and order of acquittal was passed i.e. on 27.02.2023 and the learned trial Court dismissed the complaint on the ground that the complainant, after recording the verification never remained present before the learned trial Court and therefore, power under Section 256 of the Cr.P.C. was exercised, which is the subject matter of the challenge before this Court. 3. Heard the learned advocate Mr. Alok Thakkar for the appellant and learned advocate Mr. Jignesh Hajare for the respondent-accused. 4. Learned advocate Mr. Alok Thakkar for the appellant submits that his son was suffering from multiple mental diseases and his brain is not functioning properly from his birth and therefore, he filed an application before this Court praying to transfer the Criminal Case from the learned trial Court, Rajkot to the learned trial Court, Gandhinagar.
4. Learned advocate Mr. Alok Thakkar for the appellant submits that his son was suffering from multiple mental diseases and his brain is not functioning properly from his birth and therefore, he filed an application before this Court praying to transfer the Criminal Case from the learned trial Court, Rajkot to the learned trial Court, Gandhinagar. The said application was pending before this Court and the respondent-accused appeared through his pleader, however, the respondent- accused did not bring this fact to the notice of the learned trial Court and in turn learned trial Court has passed the judgment and order of acquittal. 4.1. Learned advocate Mr. Thakkar submits that not only the appellant, but also the respondent-accused did not appear on various occasions therefore, it cannot be said that trial could not be proceeded because of absence of the complainant only. 4.2. Learned advocate Mr. Thakkar submits that the amount which was transferred was through the RTGS and the promissory note was also executed by the respondent- accused, however, because of the dismissal of the complaint, the appellant was left remediless and therefore, he prayed to quash the impugned judgment and order of acquittal, which was passed on technical ground and prayed to restore the criminal case to its original file. 5. On the other hand learned advocate Mr. Jignesh Hajare has vehemently opposed this appeal and submitted that after filing the application below Exhibit 8, the complainant prays to deposit 20% of the cheque amount, but thereafter complainant never bothered to remain present before the learned trial Court. 5.1. Learned advocate Mr. Hajare submits that after recording the plea, the case was adjourned for the cross examination of the complainant and because of the absence of the complainant, trial could not be proceeded further and therefore, the learned trial Court has rightly exercised the power under Section 256 of the Cr.P.C. and dismissed the complaint for non- prosecution and therefore, learned advocate Mr. Hajare prays not to interfere with the impugned judgment and order of the acquittal and dismiss the appeal. 6. Heard the learned advocates for the respective parties and thoroughly examined the record and proceedings, which is part of the appeal before this Court. 6.1. It is the case of the complainant that the complainant had lent the amount of Rs.
Hajare prays not to interfere with the impugned judgment and order of the acquittal and dismiss the appeal. 6. Heard the learned advocates for the respective parties and thoroughly examined the record and proceedings, which is part of the appeal before this Court. 6.1. It is the case of the complainant that the complainant had lent the amount of Rs. 4 Lakh through RTGS and for the repayment of the aforesaid amount, cheque which was issued was dishonored with an endorsement of funds insufficient. 6.2. From record and proceedings, it transpires that the verification of the complainant was recorded on 18.08.2018 and the summons under Section 204 of the Cr.P.C. came to be issued, making it returnable on 08.01.2019. Thereafter, an application was moved by the learned advocate for the complainant below Exhibit 8 praying to deposit 20% of the cheque amount. On the same day i.e. on 04.07.2019, the plea of the accused was recorded below Exhibit 7. It transpires that after verification was recorded, the complainant never remained present before the learned trial Court for the period of five years. 6.3. Learned advocate Mr. Thakkar for the appellant had tried to convey the reasons that because of the application, which was filed before this Court praying to transfer the proceedings, he could not remain present. On perusing the status of Criminal Misc. Application No. 2793 of 2021, it transpires that the aforesaid application was filed on 08.02.2021. Prior to that also for the period of approximately three years, the complainant did not remain present before the learned trial Court. Even in the proceedings, which are pending before the High Court in the nature of transfer application, no stay was granted by this Court and only notice was issued on 23.02.2021. 6.4. Learned advocate for Mr. Thakkar the appellant has submitted that though the respondent-accused represented through his pleader before the High Court in transfer proceedings, he did not bring to the notice of the learned trial Court with regard to the fact of the pendency of the transfer application. It is required to be noted that there was no stay granted by the High Court in transfer application and after summons was issued by the learned trial Court, the matter came to be adjourned from time to time for five years on the ground of non-remaining present of the complainant. 7.
It is required to be noted that there was no stay granted by the High Court in transfer application and after summons was issued by the learned trial Court, the matter came to be adjourned from time to time for five years on the ground of non-remaining present of the complainant. 7. Considering the submissions advanced by the learned advocate for the appellant and before going into the merits, the provisions under which, the impugned order is passed, is required to be re-looked. 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.” 8. This Court has considered the decision rendered by the Apex Court in the case of Babu Singh v. State of U.P, reported in (1978) 1 SCC 579 , wherein the observations made by the Apex Court are as under: “9.1 Commenting on the delay in the justice-delivery system, although in respect of the criminal trial, Krishna Iyer, J. in the case of Babu Singh vs. State of U.P. (1978) 1 SCC 579 has observed in paragraph 4 as under: “4.........Our justice system, even in grave cases, suffers from slow motion syndrome which is lethal to ‘fair trial’ whatever the ultimate decision.
Speedy justice is a component of social justice since the community, as a whole, is concerned in the criminal being condignly and finally punished within a reasonable time and the innocent being absolved from the inordinate ordeal of criminal proceedings.” 9.2 Then the Hon’ble Apex Court in the case of Ishwarlal Mali Rathod vs. Gopal and Others in Special Leave Petition (Civil) Nos. 14117-14118 of 2021 observed that: “5.5 Today the judiciary and the justice delivery system is facing acute problem of delay which ultimately affects the right of the litigant to access to justice and the speedy trial. Arrears are mounting because of such delay and dilatory tactics and asking repeated adjournments by the advocates and mechanically and in routine manner granted by the courts. It cannot be disputed that due to delay in access to justice and not getting the timely justice it may shaken the trust and confidence of the litigants in the justice delivery system. Many a times, the task of adjournments is used to kill Justice. Repeated adjournments break the back of the litigants. The courts are enjoying upon to perform their duties with the object of strengthening the confidence of common man in the institution entrusted with the administration of the justice. Any effort which weakens the system and shake the faith of the common man in the justice dispensation has to be discouraged. Therefore the courts shall not grant the adjournments in routine manner and mechanically and shall not be a party to cause for delay in dispensing the justice. The courts have to be diligence and take timely action in order to usher in efficient justice dispensation system and maintain faith in rule of law. We are also aware that whenever the trial courts refused to grant unnecessary adjournments many a times they are accused of being strict and they may face displeasure of the Bar. However, the judicial officers shall not worry about that if his conscience is clear and the judicial officer has to bear in mind his duties to the litigants who are before the courts and who have come for justice and for whom Courts are meant and all efforts shall be made by the courts to provide timely justice to the litigants.” 9.3 The Hon’ble Apex Court in the case of S. Rama Krishna vs. S. Rami Reddy (Dead) by his LRs.
and Others, (2008) 5 SCC 535 observed as under: “(A) Criminal Procedure Code, 1973 - Ss. 256(1) and 378(1) - Ingredients of S. 256(1) - Acquittal of accused on non-appearance of complainant - Exercise of jurisdiction by Magistrate under S. 256(1) - Scope of - Conduct of the complainant significant - Interference of High Court under S. 378(1) in appeal against acquittal of accused recorded by Magistrate in exercise of discretion under S. 256(1) whether justified - Complaint filed against appellant for dishonour of cheque on 6.6.2001 - After death of complainant his heirs did not press their application for substitution - On 14 dates between 18.4.2005 to 23.1.2006 nobody represented the complainant - accused kept appearing on most dates - Noticing respondent heirs’ failure to attend court for a long time, Magistrate under S. 256 acquitted the appellant on 23.1.2006 - High Court in appeal under S. 378(1), despite finding that respondent heirs were not interested in getting the matter prosecuted, set aside the order of acquittal on ground that lis between the parties should be decided on merits and directed that respondents be given one more opportunity - Held, High Court in appeal against acquittal erred in interfering with the discretion exercised by Magistrate under S. 256(1).” 9. The argument of the learned advocate for the appellant is that due to the miscommunication on the part of the learned advocate for the complainant, the complainant who is having a fair case should not suffer because of his absence, but at the same time, dilatory tactics on the part of the complainant who set the criminal law in motion by filing the private complaint should be restricted. An accused who is forced to attend the court on all posting days can put harassment by a complainant if he does not turn up to the court on occasions when his presence is necessary. With a view to protect to the accused against such tactics of the complainant, the provision under Section 256 of the Code was added. 10. Considering the negligent approach of the appellant in conducting the case before the learned trial Court, this Court deems it fit not to interfere with the impugned judgment and order of the acquittal. 11. In view of the foregoing reasons, the present appeal is dismissed.
10. Considering the negligent approach of the appellant in conducting the case before the learned trial Court, this Court deems it fit not to interfere with the impugned judgment and order of the acquittal. 11. In view of the foregoing reasons, the present appeal is dismissed. The impugned judgment and order of acquittal dated 27.02.2023 passed by the learned Presiding Officer Special N.I. Act Court, Rajkot in Criminal Case No. 10103 of 2018, is hereby confirmed. Record and proceedings be sent back to the concerned Court, forthwith.