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2024 DIGILAW 825 (GUJ)

Sureshbhai Nanubhai Jargaliya v. State Of Gujarat

2024-04-09

M.K.THAKKER

body2024
ORDER : ORDER IN R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 23020 of 2023 1. This application is filed under Section 378(4) of the Code of Criminal Procedure, 1973 (‘the Cr.P.C.’ referred hereinafter) seeking leave to prefer an appeal to challenge the judgment and order passed below Exhibit 1 in Criminal Case No.57933 of 2019 dated 11.02.2023 whereby the complaint came to be dismissed by exercising the power under Section 256 of the Cr.P.C. and the respondent-accused came to be acquitted 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 a milk vendor and as the complainant wants to sell the stable, the respondent-accused had shown willingness to purchase the same and therefore, the sale deed with the possession was executed between the parties on 30.08.2019. To make the payment of the sale consideration, the cheque dated 09.10.2019 for the amount of Rs.8 Lakh bearing No.048671 was issued in favour of the complainant. On depositing the same, it was dishonored with an endorsement of ‘funds insufficient’ and therefore, on following the due procedure under the N.I.Act, a complaint came to be filed. 2.1. On recording the verification, the summons came to be issued by the learned trial Court, making it returnable on 13.01.2020 thereafter, the complainant did not remain present on any occasions and therefore, the learned trial Court has dismissed the complaint for non- prosecution, which is the subject matter before this Court. 3. Heard the learned advocate Mr.Pathiv Bhatt for the applicant. 4. Learned advocate Mr.Parthiv Bhatt submits that there was no any reasons stated in the memo of appeal for not remaining present for these many occasions, however, at the same time, the notice is required to be issued to the complainant before dismissing the complaint and before exercising the power under Section 256 of the Cr.P.C. Learned advocate Mr.Bhatt submits that the learned trial Court by not issuing the notice before dismissing the complaint has committed an error and therefore, the application for seeking leave to prefer an appeal is required to be granted and appeal is required to be admitted. 5. 5. Considering the submissions made by the learned advocate Mr.Bhatt for the applicant and on examining the record and proceedings it transpires that, after verification was recorded on 02.01.2020 and the summons came to be issued on 13.01.2020 thereafter, the case was posted on 09.03.2020, 13.05.2020, 16.09.2020, 04.12.2020, 19.12.2020, 06.05.2020, 29.07.2020, 21.10.2020 and thereafter the case came to be transferred to the court of learned 23rd Additional Senior Civil Judge and Judicial Magistrate First Class, Surat vide order dated 05.01.2022. Thereafter, again the case came to be posted on 31.05.2022, 30.06.2022, 30.08.2022, 30.09.2022, 11.10.2022, 18.10.2022, 07.11.2022, 30.11.2022, 13.12.2022, 20.12.2022, 10.01.2023, 17.01.2023, 25.01.20203, 31.01.2023, 09.02.2023, 10.02.2023 and 11.02.2023.It transpires from the record that on none of the occasions the complainant or his advocate remained present to conduct the case before the learned trial Court. 6. So far as the submissions with regard to the issuance of the notice before exercising the power under Section 256 of the Cr.P.C. is concerned, before discussing further provision under Section 256 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.” 7. (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. Section 256 of the Cr.P.C. provides that if the summons has been issued on complaint and on the day appointed for appearance of the accused, if the complainant is not present then the learned trial Court may exercise the powers provided under Section 256 of the Cr.P.C. Therefore, requirement before exercising the powers would be issuing the summons on the complaint and on perusing the record and proceedings, it transpires that summons under Section 204 has already been issued by the learned trial Court on the complaint and thereafter the learned advocate for the complainant and the complainant did not bother to keep the track of the case and to appear before the learned trial Court on any occasion. 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: “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. The Apex Court in the case of Ishwarlal Mali Rathod vs. Gopal & Ors. 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. 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” 10. The Apex Court in the case of S. Rama Krishna vs. S. Rami Reddy (Dead) by his Lrs. & Ors., reported in (2008) 5 SCC 535 has observed as under: “A. Criminal Procedure Code, 1973 – Ss. The Apex Court in the case of S. Rama Krishna vs. S. Rami Reddy (Dead) by his Lrs. & Ors., reported in (2008) 5 SCC 535 has 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)” 11. Considering the negligent approach of the appellant in conducting the case before the learned trial Court, learned trial Court rightly dismissed the complaint for non- prosecution. 12. In view of the above, this Court finds no any illegality, perversity or impropriety in the impugned judgment and order of dismissing the complaint. Therefore, leave as prayed for is declined. Application for seeking leave to prefer an appeal is dismissed. ORDER IN F/CRIMINAL APPEAL NO. 21209 of 2023 In view of the order passed in Criminal Misc. Application for seeking leave to prefer an appeal, appeal is also dismissed.