Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 769 (GUJ)

Tusharbhai Navneetbhai Patel v. State Of Gujarat

2024-04-04

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 impugned judgment and order of acquittal passed by the learned 2nd Additional Chief Judicial Magistrate, Anand in Criminal Case No.4893 of 2021, whereby the learned trial court has dismissed the complaint under section 256 of the Cr.P.C. for non prosecution and acquitted the respondent-accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1886 (‘the N.I.Act’ referred hereinafter). 2. It is the case of the complainant that the complainant is having a petrol pump and the respondent-accused is the transporter and used to come to the petrol pump of the complainant, this way they were having friendly relations with each other. Hence, when the respondent-accused asked the complainant to lend him Rs.15,00,000/-, complainant had lent it to him. In view of the aforesaid payment, a cheque of Rs.15,00,000/- dated 08-07-2021 was issued in favour of the complainant with an assurance that on depositing the same it would be honored and the amount would be credited in the account of the complainant. On depositing the same cheque, it was dishonored with an endorsement of “Funds Insufficient”. 2.1. On the day when the impugned judgment and order was passed, it was observed by the learned trial Court that though the matter was called out, no one has remained present on behalf of the complainant neither any report was submitted and due to absence of the complainant, trial could not be proceeded further, and therefore learned trial Court has passed impugned judgment and order of acquittal, which is subject matter of challenge before this Court. 3. Heard the learned advocate Ms.Renu Verma for the appellant-original complainant and though notice was issued, no one has appeared to oppose this appeal either in person or through an Advocate. 4. Learned advocate Ms.Verma submits that, as per the Rojkaam the complainant and his advocate remained absent on the day when the impugned judgment and order of acquittal was passed. Learned Advocate Ms.Verma submits that on perusing the Rojkaam, no absence or presence were recorded prior to the date of impugned judgment and order of acquittal. However, on single default the learned trial court has acquitted the respondent-accused by exercising the power under section 256 of the Cr.P.C. 4.1. Learned Advocate Ms.Verma submits that on perusing the Rojkaam, no absence or presence were recorded prior to the date of impugned judgment and order of acquittal. However, on single default the learned trial court has acquitted the respondent-accused by exercising the power under section 256 of the Cr.P.C. 4.1. Learned advocate Ms.Verma submits that for a single default in remaining present before the learned trial Court and that too also due to the miscommunication on the part of the complainant and his advocate, impugned judgment and order of acquittal was passed. 4.2. Learned advocate Ms.Verma submits that the cheque of Rs.15,00,000/- was dishonored for which the impugned complaint came to be filed and on dismissing the complaint the complainant was left remediless in view of the time barred litigation. 4.3. Learned advocate Ms.Verma submits that if this impugned judgment and order of acquittal is quashed and matter is remanded back to the learned trial Court for deciding it on merits, whatever the cost would be imposed by this Court would be deposited with the Registry of this Court. Learned advocate Ms.Verma by making this submissions prays to quash the impugned judgment and order of acquittal and order to restore the criminal case to its original file. 5. Considering the averment made in the application and the submissions advanced by the learned advocate for the appellant as well as after perusing the record and proceedings it transpired that, absence on the day when the judgment and order of acquittal was passed was recorded i.e. on 25-01-2023. Prior to that date no specific entry was posted in the Rojkaam recording the presence or absence of the complainant, therefore no specific finding can be made with regard to the absence of the respondent-accused prior to the date of impugned judgment and order of the acquittal. 6. 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 relooked. Section 256 of the Code of Criminal Procedure is reproduced hereinbelow: “256. Non- appearance or death of complainant. 6. 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 relooked. Section 256 of the Code of Criminal Procedure is reproduced hereinbelow: “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.” 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. In a case under Section 138 of the Negotiable Instruments Act, 1881, it is always the complainant who is at stake for his money, which ought to have paid through the cheuqe. The discretion must, therefore, be exercised judicially and fairly without impairing the cause of administration of criminal justice. 8. In a case under Section 138 of the Negotiable Instruments Act, 1881, it is always the complainant who is at stake for his money, which ought to have paid through the cheuqe. Unfortunately, the cheque in question was dishonored and under such circumstances, instead of dismissing the complaint on recording the absence on single default, the learned trial Court could have adopted the course either to adjourn the case for hearing to some other day under provision of Section 256 of the Cr.P.C. or to grant the exemption to the complainant on a particular day for his non-appearance. 9. It transpires from the record that on filing the complaint, the summons came to be issued after recording the verification on 03.09.2021, making it returnable on 22.10.2021. On 22.10.2021 the stamp is made in the rojkaam, however, no presence or absence was recorded of the complainant or his advocate. Thereafter, matter was posted on 09.12.2021 where the absence of the complainant was recorded and the case was further posted on 27.01.2022. On 27-01-2022 no absence or presence of the complainant was recorded and the matter came to be posted on 17-03-2022, on that day learned advocate for the complainant was present, however as the accused remained absent, to secure the presence of the accused, the matter came to be posted on 13-04-2022. On 13-04-2022, the complainant and his advocate remained absent as well as the accused was also not present, therefore the case was posted on 20-04- 2022. No absence or presence was recorded on that day and the matter was posted on 01-07-2022. On that day, the complainant’s advocate was present and the application was given for direct service and through RPAD, which was granted and it was posted on 30-07- 2022. On that day again direct application was preferred and was granted below Exh.9 and the case was posted on 01-09-2022. On that day also the direct service of the summons was granted and the case came to be posted on 13-10-2022. No presence or absence was recorded on 13-10-2022, 17-11-2022 and 17-12-2022. Lastly on 25-01-2023, the due impugned judgment and order of acquittal was passed exercising the power under section 256 of the Cr.P.C. 10. On that day also the direct service of the summons was granted and the case came to be posted on 13-10-2022. No presence or absence was recorded on 13-10-2022, 17-11-2022 and 17-12-2022. Lastly on 25-01-2023, the due impugned judgment and order of acquittal was passed exercising the power under section 256 of the Cr.P.C. 10. It is true that the learned advocate for the complainant or the complainant remained absent on 25-01-2023 but in the opinion of this Court, instead of dismissing the complaint on default, learned trial Court could have issued the summons/warrants to the complainant and thereafter ought to have decided the matter on merits after giving due opportunities to the parties to lead the evidence. 11. In view of above, this Court deems it fit to allow this appeal and quash the impugned judgment and order of acquittal, which was passed on the technical ground. However, as the complainant did not remain present before the learned trial Court on several occasion, the complainant is directed to deposit the cost of Rs.15,000/- with the Registry of this Court within a period of two weeks from today. In turn, the Registry shall remit the same in the account of the Shishu Gruh Paldi, Ahmedabad by electronic mode. 12. Resultantly, this appeal is hereby allowed. The impugned judgment and order of acquittal dated 15.01.2023 passed by the learned Judicial Magistrate First Class, Anand in Criminal Case No.4893 of 2021 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. Record and proceedings be sent back to the concerned trial Court, forthwith. 13. 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.