Gujarat High Court
Jayeshbhai Bavanjibhai Solanki vs State Of Gujarat on 9 October, 2024
NEUTRAL CITATION
R/CR.A/1372/2024 JUDGMENT DATED: 09/10/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1372 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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JAYESHBHAI BAVANJIBHAI SOLANKI
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR HARESH N JOSHI(1871) for the Appellant(s) No. 1
BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s) No. 2
MR SANDIP M PATEL(5649) for the Opponent(s)/Respondent(s) No. 2
NON BAILABLE WARRANT UNSERVED for the Opponent(s)/Respondent(s)
No. 2
MS MEGHA CHITALIA APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 09/10/2024
ORAL JUDGMENT
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1. In compliance of the order passed by this Court 7.10.2024, the accused is present before this Court with an undertaking dated 9.10.2024 and the said undertaking is taken on record along with report dated 9.10.2024 submitted by learned APP.
2. Mr. Patel, learned Counsel for the respondent accused has identified respondent accused - his client, who is present before this Court. With consent of the parties the Appeal is taken for its final adjudication today.
3. The appellant has preferred the present Appeal under Section 378 of the Code of Criminal Procedure ("Cr.P.C." for short) against the judgment and order of acquittal dated 1.3.2024 passed by the learned Additional Chief Judicial Magistrate, Junagadh (hereinafter be referred to as "the trial Court") in Criminal Case No. 2437 of 2020, whereby the respondent-original accused No. 2 was acquitted from the charges levelled against him under Section 138 of the Negotiable Instrument Act, (hereinafter be referred to as "the N.I. Act"). Page 2 of 12 Uploaded by SURESH SOLANKI(HC00208) on Tue Oct 15 2024 Downloaded on : Tue Oct 15 22:27:03 IST 2024
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4. The appellant herein is original complainant and the respondent No. 2 is the original accused in Criminal Case No. 2437/2020. As per the appellant the Criminal Case was filed u/s. 138 of N.I. Act for dishonor of cheque of Rs. 2,00,000 (Two Lack only) and the case was filed in the Court of Ld. Addl. Chief Judicial Magistrate, Junagadh.
5. As per the case of the complainant, the case was at the stage of service of Summons to the respondent accused and the process of issuance of Summons continues on various dates. The first date was on 25/09/2020 and the summons was to be served on 16.12.20. The summons was served on 24.10.2022. Despite service of Summons of the Court, the respondent accused did not remain present nor engage an advocate. Therefore, the order of issuance of bailable warrant was ordered to be issued against the respondent accused person. However, neither the bailable warrant was served, nor it was returned back. The fresh bailable warrant was issued on 28.3.2023, which was returned as unserved. The fresh bailable warrant was Page 3 of 12 Uploaded by SURESH SOLANKI(HC00208) on Tue Oct 15 2024 Downloaded on : Tue Oct 15 22:27:03 IST 2024 NEUTRAL CITATION R/CR.A/1372/2024 JUDGMENT DATED: 09/10/2024 undefined issued on 18.5.2023 and made returnable on 11.8.2023. Once again the bailable warrant was returned back on 11.8.2023. The next date was fixed on 6.10.2023. The stage was that the complainant was to furnish new address of the accused and next date was 24.11.2023. The matter was kept on 21.3.2024. On that day, nor complainant nor his advocate remained present and therefore, the Criminal Case No. 2437 of 2020 has been dismissed u/s. 256 of Cr.P.C. and the respondent accused was acquitted by Ld. Addl. Chief Judicial Magistrate, Junagadh vide Judgment and order dated 01.03.2014. 5.1 In view of the above facts, the appellant has preferred present appeal and challenged the impugned order passed by the trial Court.
6. Heard Mr. Joshi, learned Counsel for the appellant and Mr. Patel, learned Counsel for the respondent-accused.
7. Mr. Joshi, learned Counsel for the appellant has submitted that once the summons is issued, there is no provision with regard to issue a fresh summons for the Page 4 of 12 Uploaded by SURESH SOLANKI(HC00208) on Tue Oct 15 2024 Downloaded on : Tue Oct 15 22:27:03 IST 2024 NEUTRAL CITATION R/CR.A/1372/2024 JUDGMENT DATED: 09/10/2024 undefined purpose of cross-examination of the complainant or recording the oral evidence of the concerned witness and therefore, the observations made by the trial Court in impugned order in paragraph No.3 is absolutely unjust and illegal.
8. Mr. Joshi, learned Counsel for the appellant has submitted in view of the above, the matter may be remanded back and the same may be decided by the trial Court after giving proper opportunity to both the sides and after producing documentary as well as oral evidence.
9. On the other hand, Mr. Patel, learned Counsel for the respondent vehemently opposed this submission however, he is unable to assail the impugned order passed by the trial Court.
10. I have perused the relevant and cogent material available on record. I have also gone through the relevant case papers and the order passed by the trial Court. Page 5 of 12 Uploaded by SURESH SOLANKI(HC00208) on Tue Oct 15 2024 Downloaded on : Tue Oct 15 22:27:03 IST 2024
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11. It is appropriate to take into account Section 256 of the Cr. P.C. which reads as under:-
"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."
12. It appears that the trial Court has dismissed for default the Criminal Case No. 2437 of 2020 u/s. 256 of Cr.P.C. and the respondent accused was acquitted for the offence punishable under Section 138 of the N.I. Act.
13. Considering the facts and circumstances of the case and arguments of both the sides, this Court is of the Page 6 of 12 Uploaded by SURESH SOLANKI(HC00208) on Tue Oct 15 2024 Downloaded on : Tue Oct 15 22:27:03 IST 2024 NEUTRAL CITATION R/CR.A/1372/2024 JUDGMENT DATED: 09/10/2024 undefined opinion that the matter is required to be remanded back to the trial Court for its fresh adjudication.
14. It is also appropriate to take into account the observations made by the Coordinate Bench of this Court in paragraph Nos. 9 and 10 in case of Hitesh Rasiklal Shah vs. Mahavir Ghevarchand Chopra passed in Criminal Appeal 1836 of 2005 decided on 4.9.2015, which read as under:-
"9. Though the submissions have been made by learned Advocate Shri J.R.Dave for Respondent No.1-Accused raising objection regarding the maintainability, the same cannot be readily accepted in view of the fact that after issuing notice the opportunity has been granted and the delay has also been condoned. Therefore, what is required to be considered is merits of the present appeal. Learned Advocate Shri J.R.Dave has emphasized that the present appeal does not challenge the order of dismissal of the complaint but the order below application for restoration and the revision. As it transpires, the issue which has been focused is the dismissal of the complaint of the complainant in his absence though notice was ordered to be issued by the court on 1.1.2001 and the next date was 9.2.2001. It appears that due to earthquake the complainant could not remain present nor any notice was served. As it transpires from the record and the rojkam the notice has not been returned back on 17.8.2001 when the complaint of the complainant came to be dismissed in exercise of power under Section 256 of Cr.PC. Thus, it is evident, even though notice was ordered by the court itself in order to provide an opportunity to the Page 7 of 12 Uploaded by SURESH SOLANKI(HC00208) on Tue Oct 15 2024 Downloaded on : Tue Oct 15 22:27:03 IST 2024 NEUTRAL CITATION R/CR.A/1372/2024 JUDGMENT DATED: 09/10/2024 undefined complainant the court did not verify as to why the notice has not been returned back. It therefore suggests that the notice which was sought to be given to provide an opportunity to the complainant the same was not verified that the opportunity is made available to the complainant. He has stated that due to the earthquake thereafter for some time he could not remain present. Learned Advocate Shri J.R.Dave is right in his submission with regard to the fact that the application for restoration of the complaint itself was misconceived in light of the statutory provisions of Section 256 Cr.PC. Therefore the appeal could have been preferred but in fact it was not preferred earlier. However, the fact remains, thereafter the present appeal with condonation of delay of appeal and seeking leave to appeal has been granted after issuing notice to the other side. Therefore, this is required to be examined only on merits whether the order passed by the court below in exercise of power under Section 256 Cr.PC dismissing the complaint could be sustained in spite of the fact that the notice issued to the complainant was not served. Further as it is reflected from the rojkam from 1996 to 2001 it proceeded with a snails speed and thereafter the haste and hurry is not justified. In any view of the matter though it cannot be said that there is a singular default, reference can be made to the judgment of the Hon'ble Apex Court reported in (2002) 7 SCC 726 - Mohd. Azeem v. A.Venkatesh and Anr. Similarly, this court in ajudgment reported in 2013 (3) GLR 2723 - Harisinh Bhagwatsinh Sarvaiya v. State of Gujarat referring to this very issue of exercise of power under Section 256 of Cr.PC and dismissal of the complaint for non-appearance of the complainant or his Advocate has made the observations referring to the approach in such matters that the matter should be decided on merits. This court also while passing the order in Criminal Appeal No. 248 of 2013 and allied matters has also expressed the same view that though the Advocate is supposed to take care of the matter of his client, but for his omission or lapses the litigant has to pay heavily. Therefore, the party may not be made to suffer for the lapse on part of the Advocate. It is well accepted that normally the matter should be decided on merits rather than on technicality Page 8 of 12 Uploaded by SURESH SOLANKI(HC00208) on Tue Oct 15 2024 Downloaded on : Tue Oct 15 22:27:03 IST 2024 NEUTRAL CITATION R/CR.A/1372/2024 JUDGMENT DATED: 09/10/2024 undefined as it provides an opportunity to both the sides. The Hon'ble Apex Court in a judgment reported in (2002) 7 SCC 726 in the case of Mohd. Azeem Vs. A. Venkatesh and another, referring to the same provisions of Section 256 Cr.PC and Section 138 of the Negotiable Instruments Act and has made the observation that when the matter was dismissed for nonappearance of the complainant, the Court should not have adopted a strict and unjust attitude resulting in failure of justice.
10. Therefore the submissions which have been made by learned Advocate Shri J.R.Dave referring to the judgment reported in case of S.Rama Krishna v. S.Rami Reddy (supra) that the Magistrate has the powers to acquit and the accused has the right for speedy trial is required to be considered in background of the facts of the case Though he has emphasized this aspect about the earlier trial or the expeditious trial, the fact remains that the matter has to be decided on merits rather than on technicalities as referred to herein above. Therefore the submissions made by learned Advocate Shri Viral Dave cannot be accepted and the present Appeal as submitted by the learned Advocate Shri Pandya deserves to be allowed and accordingly stands allowed. The order dated 17.8.2001 dismissing the complaint / Criminal Case No. 4706 of 1996 is hereby quashed and set aside. The order below application for restoration at Annexure- E and the order passed in Revision against that order at Annexure-F are set aside with the clarification that as per the statutory provisions, there is no provision for restoration or recalling of the order and those proceedings are of no consequence. Therefore the order at Annexure-A by which the complaint of the complainant being Criminal Case No. 4706 of 1996 has been dismissed by order dated 17.8.2001 is hereby quashed and set aside and the Criminal Case No. 4706 of 1996 is ordered to be restored to the file for deciding the same on merits in accordance with law expeditiously and preferably within a period of six months. It goes without saying that both the sides will cooperate in proceeding with the aforesaid case and it will be open for the Presiding Officer to insist for hearing and / or impose the cost in case of failure to remain present.Page 9 of 12 Uploaded by SURESH SOLANKI(HC00208) on Tue Oct 15 2024 Downloaded on : Tue Oct 15 22:27:03 IST 2024
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15. In the judgment of this Court dated 22.10.2012 passed in Criminal Appeal No. 1630 of 2012 in case of Biren Chandulal Mehta vs. State of Gujarat, the Coordinate Bench of this Court has after considering the judgment of Hon'ble Apex Court in case of S. Rama Krishna vs. S. Rami Reddy (D) by his LR and Others reported in (2008) 5 SCC 535 has observed in paragraph No.7 which reads as under:-
"7.0. Now, so far as reliance placed upon the decision of the Hon'ble Supreme Court in the case of S. Rama Krishna(supra) relied upon by the learned advocate for the accused, on considering the said decision, it appears to the Court that the same shall not be of any assistance to the accused in the facts and circumstances of the case. In the case before the Hon'ble Supreme Court it was found that the complainant remained absent on 14 dates between 18.4.2005 to 23.1.2006 and thus it was found that complainant remained negligent."
16. In view of the above facts and in view of the decisions of the Hon'ble Apex Court and this Court in cases of Harisinh Bhagwatsinh Sarvaiya vs. State of Gujarat reported in 2013 (3) G.L.R. 2723, Ankur Arunrao Pawale vs. Ritaben Rameshbhai Bhatt Page 10 of 12 Uploaded by SURESH SOLANKI(HC00208) on Tue Oct 15 2024 Downloaded on : Tue Oct 15 22:27:03 IST 2024 NEUTRAL CITATION R/CR.A/1372/2024 JUDGMENT DATED: 09/10/2024 undefined reported in 2013(3) G.L.R. 2429, Mohd. Azeem vs. A. Venkatesh and another reported in 2002(7) SCC 72, present Appeal requires consideration.
17. Accordingly, the Appeal is allowed. The order dated 1.3.2024 passed by the learned Additional Chief Judicial Magistrate, Junagadh in Criminal Case No. 2437 of 2020, is hereby quashed and set aside and the complaint is restored to its original status.
18. The trial Court is directed to decide the complaint on its own merits after giving proper opportunity to all the parties. It is also expected from both the parties that they may cooperate to the trial Court in the proceedings without seeking any unnecessary adjournment, in view of the specific observation time and again by the Hon'ble Apex Court that the summons triable cases are required to be heard as expeditiously as possible. Therefore, separate mechanic is provided and separate Courts are established under the statute. Therefore, it is expected that all the concerned follows the statutory provision and Page 11 of 12 Uploaded by SURESH SOLANKI(HC00208) on Tue Oct 15 2024 Downloaded on : Tue Oct 15 22:27:03 IST 2024 NEUTRAL CITATION R/CR.A/1372/2024 JUDGMENT DATED: 09/10/2024 undefined cooperate to the Court concerned. It is also expected that the trial Court will decide the complaint as expeditiously as possible.
Direct service is permitted.
Sd/-
(HEMANT M. PRACHCHHAK,J) SURESH SOLANKI Page 12 of 12 Uploaded by SURESH SOLANKI(HC00208) on Tue Oct 15 2024 Downloaded on : Tue Oct 15 22:27:03 IST 2024