Gujarat High Court
Yogeshkumar Keshavlal Kamdar vs Jamnadas Bhagwandas Vakharia on 31 March, 2022
Author: Rajendra M. Sareen
Bench: Rajendra M. Sareen
R/CR.A/1585/2006 CAV JUDGMENT DATED: 31/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 1585 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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YOGESHKUMAR KESHAVLAL KAMDAR
Versus
JAMNADAS BHAGWANDAS VAKHARIA & 3 other(s)
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Appearance:
(MR SURESHM SHAH)(805) for the Appellant(s) No. 1
MR MEHUL S SHAH(772) for the Appellant(s) No. 1
ABATED for the Opponent(s)/Respondent(s) No. 1
MR JITENDRA MALKAN(1168) for the Opponent(s)/Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 31/03/2022
CAV JUDGMENT
1. This Appeal is filed by the appellant under Section 378(1) and (4) of the Criminal Procedure Code, 1973 against the judgment and order dated 20.04.2005 passed below Ex.53 by the learned Judicial Magistrate, First Class, Visavadar in Criminal Case No.211 of 1999, refusing to join the appellant as complainant and acquitting the private Page 1 of 12 Downloaded on : Thu Mar 31 22:05:07 IST 2022 R/CR.A/1585/2006 CAV JUDGMENT DATED: 31/03/2022 respondents Nos. 1 to 3 - original accused from the offence punishable under sections 406, 420 and 114 of Indian Penal Code and under section 138 of the Negotiable Instruments Act.
2. The facts of the case in nutshell are that the appellant filed an application Ex.53 stating that the original complainant Keshavlal Vallabhdas Kamdar is his father who has expired on 4/10/2001 at Gandhigram, Rajkot. It is stated in the application that the complainant has filed a complaint against the accused under sections 138 read with section 142 of the Negotiable Instruments, wherein summons has been issued. It is stated that the appellant is the son of the deceased complainant Keshavlal Vallabhdas Kamdar and legal representative of the deceased complainant and power of attorney of other heirs and hence he may be substituted in the complaint as son of the complainant and the complaint may be continued.
3. The said complaint was opposed by the original accused nos.1 and 2 by filing objections.
4. After hearing both the sides and considering the facts and circumstances of the case, the learned trial court, vide impugned judgement and order dated 20/4/2005 rejected the application Ex.53 and acquitted the accused in the complaint filed under section 406, 420 and 114 of the Indian Penal Code and under section 138 read with section Page 2 of 12 Downloaded on : Thu Mar 31 22:05:07 IST 2022 R/CR.A/1585/2006 CAV JUDGMENT DATED: 31/03/2022 142 of the Code of Criminal Procedure, against which the present appeal has been preferred by the appellant - son of the original complainant.
5. Mr.Pranav Raval, learned advocate for the appellant has vehemently submitted that the trial court has materially erred in rejecting the application of the appellant to be joined as complainant, upon the death of the original complainant, being his heir and legal representative. He has further submitted that the trial court has materially erred in ordering acquittal of the accused, without trial and merely consequent upon the death of the original complainant and rejection of the application Ex.53 of the present appellant. He further submitted that the trial court ought to have considered that when the complaint in question is filed under section 406, 420 and 114 of the Indian Penal Code and under section 138 and 142 of the Negotiable Instruments Act and when the trial court has taken cognizance of the same and ordered to issue summons to the accused whereupon the accused have appeared, the death of the original complaint does not have any effect on the trial to proceed before the trial couort and the complaint/case does not abate, particularly when the appellant being heir of the original complainant, has filed application for being substituted as complainant.
6. Mr.Raval has further submitted that the trial court ought to have considered that as per settled position of law, Page 3 of 12 Downloaded on : Thu Mar 31 22:05:07 IST 2022 R/CR.A/1585/2006 CAV JUDGMENT DATED: 31/03/2022 the present appellant is entitled to be substituted as a complainant, being the heir of the deceased complainant. He further submitted that the trial court ought to have joined the appellant as complainant and proceeded further with the trial by exercising powers under section 302 of the Code of Criminal Procedure. That the lower court has erred to interpreting section 256 of the Code of Criminal Procedure. The lower court erred in holding that the decisions cited from the complainant's side is not helpful to the appellant. The trial court failed to appreciate that provisions of section 256 of the Code of Criminal Procedure is applicable. That the impugned order is erroneous, illegal, unsustainable and liable to be set aside.
Mr.Raval, learned advocate for the appellant has relied upon the decision of this Court in the case of Anil G. Shah versus Chitranjan Company and others, reported in 1998(1) GLR 303 in support of his submission that if the complainant dies, the proceedings do not abate and once cognizance of offence has been taken by the magistrate, trial will have its end after following due process and procedure as laid down in the code of criminal procedure and there is no provision in the Code of Criminal Procedure or in the Negotiable Instruments Act laying down that on account of death of payee, trial must be abate and merely because original complainant payee has died, there could not be abatement of the proceedings and legal heirs of original complainant aare entitled to come forward and ask for their substitution in place of the complainant so as to proceed Page 4 of 12 Downloaded on : Thu Mar 31 22:05:07 IST 2022 R/CR.A/1585/2006 CAV JUDGMENT DATED: 31/03/2022 further with the trial. He has also relied upon the decision of co-ordinatae Bench of this Court (Coram : R.P. Dholaria, J.) in Criminal Appeal No2069 of 2018 dated 06/08/2019 wherein the co-ordinate bench reiterated the law laid down by this Court in the case of Anil G. Shah (supra).
7. Per contra, Mr.Jitendra Malkan, learned advocate for the private respondents Nos.1, 2 and 3 - original accused has submitted that there is no provision in the Code of Criminal Procedure for joining heirs. As per the provisions of the Code of Civil Procedure, heir is required to be joined within 90 years and complainant died on 4/10/2001 and application is filed for joining heir on 2/9/2003 and hence the application is not maintainable. Further, it is also not disclosed that how many heirs the deceased complainant has and hence also the application is required to be rejected.
He has relied upon the decision of the Hon'ble Supreme Court in the case of S. Rama Krishna Vs. Rami Reddy (D) by His Lrs. And others, rendered in Appeal (Criminal) No.755 of 2008 in support of his submission that section 256 of the Code of Criminal Procedure empowers a Magistrate to pass an order of acquittal on non-appearance or death of the complainant.
8. Heard the learned advocates for the respective parties and considered the judgement and order passed by the court below. Since the respondent No.1 expired during the Page 5 of 12 Downloaded on : Thu Mar 31 22:05:07 IST 2022 R/CR.A/1585/2006 CAV JUDGMENT DATED: 31/03/2022 proceedings, present appeals stands abated qua respondent No.1.
8.1. On perusal of the impugned judgement and order it appears that the the original complainant Keshavlal Vallabhdas Kamdar, father of the appellant herein-original filed a complaint for the offence under sections 406, 420 and 114 of the Indian Penal Code and under section 138 read with section 142 of the Code of Criminal Procedure, and Court Inquiry was conducted under section 202 of the Code of Criminal Procedure and summons was issued against the accused - private respondents herein under section 204 of the Code of Criminal Procedure. The original complainant - father of the appellant herein expired on 4/10/2001. On the death of his father, the appellant being son and legal representative of his father, made application on 2/9/2003 for substituting himself in place of his father in the complaint. However, the same came to be rejected by the trial court by the impugned judgement and order.
8.2 As held by this Court in the case of Anil G. Shah versus Chitranjan Company and others (supra), relied upon by the learned advocate for the appellant, once cognizance of offence has been taken by the magistrate, trial will have its end after following due process and procedure as laid down in the Code of Criminal Procedure and there is no provision in the Code of Criminal Procedure or in the Negotiable Instruments Act laying down that on account of Page 6 of 12 Downloaded on : Thu Mar 31 22:05:07 IST 2022 R/CR.A/1585/2006 CAV JUDGMENT DATED: 31/03/2022 death of payee, trial must be abate and merely because original complainant payee has died, there could not be abatement of the proceedings and legal heirs of original complainant are entitled to come forward and ask for their substitution in place of the complainant so as to proceed further with the trial.
The aforesaid law laid down in the case of Anil G. Shah (supra) has been reiterated by co-ordinate Bench of this Court in Criminal Appeal No.2069 of 2018 in its judgement delivered on 06/08/2019.
From the aforesaid decision of this Court in the case of Anil G. Shah (supra) it is clear that once cognizance of offence has been taken by the magistrate, trial will have its end after following due process and procedure as laid down in the Code of Criminal Procedure and there is no provision in the Code of Criminal Procedure or in the Negotiable Instruments Act laying down that on account of death of payee, trial must be abate and merely because original complainant payee has died, there could not be abatement of the proceedings and legal heirs of original complainant are entitled to come forward and ask for their substitution in place of the complainant so as to proceed further with the trial.
9. Now, so far as the decision of the Hon'ble Supreme Court in the case of S. Rama Krishna (supra) relied upon by the learned advocate for the private respondents is concerned, in the said case complaint was filed under Page 7 of 12 Downloaded on : Thu Mar 31 22:05:07 IST 2022 R/CR.A/1585/2006 CAV JUDGMENT DATED: 31/03/2022 Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 on 6.6.2001. It was registered as C.C. No. 368 of 2001. The original complainant - Rami Reddy expired on 28.10.2003. Respondents herein filed an application for substitution of their names in place of the said Rami Reddy on 22.12.2003. Appellant filed an objection thereto. No order was passed on the said application. The counsel appearing on of the complainant started representing the proposed heirs of the said Rami Redy. It appears that on or about 18.4.2005 till 23.1.2006 i.e. on 14 dates nobody represented the complainant. On 23.1.2006, noticing that the respondents had not been attending the court for a long time, the appellant was acquitted by the learned Magistrate in purported exercise of his jurisdiction under Section 256 of the Code of Criminal Procedure. An appeal was preferred before the High Court of Andhra Pradesh questioning the validity of the order dated 23.1.2006. By reason of the impugned judgment, a learned single judge of the High Court set aside the said judgment of acquittal.
In the said case the respondents themselves did not seriously press their applications for their substitution in place of the original complainant. In the said case it is held that Section 256 of the Code of Criminal Procedure empowers a Magistrate to pass an order of acquittal on non- appearance or death of the complainant.
In the said case, the complaint petition was filed in the year 2001, the original complainant Rami Reddy died in Page 8 of 12 Downloaded on : Thu Mar 31 22:05:07 IST 2022 R/CR.A/1585/2006 CAV JUDGMENT DATED: 31/03/2022 2003. A large number of dates were fixed for hearing of the case. Although, on some dates, the respondents were either present in court in person or were represented by their Advocate, but as noticed hereinbefore, continuously for about 15 dates fixed for hearing, they remained absent. The ingredients of Section 256(1) are: (i) that summons must have been issued on a complaint, (ii) the Magistrate should be of the opinion that for some reasons, it is not proper to adjourn the hearing of the case to some other date; and (iii) the date on which the order under Section 256(1) can be passed is the day appointed for appearance of the accused or any day subsequent thereto, to which the hearing of the case has been adjourned. It is not a case where the proviso appended to sub-Section (1) of Section 256 of the Code was applicable.
In the said case, the matter remained pending for more than five years. It was obligatory on the part of the respondents to press their application for substitution. They did not file attendance of their witnesses. The case was fixed for hearing.
It is held by the Hon'ble Apex Court that the learned Magistrate in terms of sub-Section (1) of Section 256 exercises wide jurisdiction. Although an order of acquittal is of immense significance, there cannot be any doubt or dispute whatsoever that the discretion in this case had been properly exercised by the learned Magistrate.
It is further held by the Supreme Court that the provisions of Section 256(1) mandate the Magistrate to Page 9 of 12 Downloaded on : Thu Mar 31 22:05:07 IST 2022 R/CR.A/1585/2006 CAV JUDGMENT DATED: 31/03/2022 acquit the accused unless for some reason he thinks it proper to adjourn the hearing of the case. If an exceptional course is to be adopted, it must be spelt out the discretion conferred upon the learned Magistrate, however, must be exercised with great care and caution. The conduct of the complainant for the said purpose is of immense significance. He cannot allow a case to remain pending for an indefinite period. Appellant had been attending the court for a long time, except on some dates where when remained absent or was otherwise represented by his Advocate.
It is further held by the Hon'ble Supreme Court that he had to remain present in court. He attended the court on not less than 20 occasions after the death of the original complainant. If in the aforementioned situation, the learned Magistrate exercised his discretionary jurisdiction, the same, in our opinion, should not have been ordinarily interfered with.
It is further held by the Hon'ble Apex Court that the High Court itself had come to the finding that the respondents were not interested in getting the matter prosecuted.
10. Thus, on perusal of the order of the Hon'ble Supreme Court it is clear that the same is not applicable to the facts of the case on hand and section 256 has no application in the facts of the case on hand and the case relied upon by the appellant in the case of Anil G. Shah (supra) is squarely Page 10 of 12 Downloaded on : Thu Mar 31 22:05:07 IST 2022 R/CR.A/1585/2006 CAV JUDGMENT DATED: 31/03/2022 applicable wherein it has been held that once cognizance of offence has been taken by the magistrate, trial will have its end after following due process and procedure as laid down in the code of criminal procedure and there is no provision in the Code of Criminal Procedure or in the Negotiable Instruments Act laying down that on account of death of payee, trial must be abate and merely because original complainant payee has died, there could not be abatement of the proceedings and legal heirs of original complainant are entitled to come forward and ask for their substitution in place of the complainant so as to proceed further with the trial.
In the present case also cognizance has been taken by the court and summons was issued by the trial court against the accused and hence on death of the original complainant, the proceedings do not abate and legal heirs of original complainant are entitled to come forward and ask for their substitution in place of the complainant so as to proceed further with the trial.
11. The aforesaid law laid down in the case of Anil G. Shah (supra) has been reiterated by co-ordinate Bench of this Court in in Criminal Appeal No.2069 of 2018 in its judgement delivered on 06/08/2019.
12. For the reasons stated hereinabove, the appeal deserves to be allowed and is accordingly allowed. The impugned judgment and order dated 20.04.2005 passed Page 11 of 12 Downloaded on : Thu Mar 31 22:05:07 IST 2022 R/CR.A/1585/2006 CAV JUDGMENT DATED: 31/03/2022 below Ex.53 by the learned Judicial Magistrate, First Class, Visavadar in Criminal Case No.211 of 1999 is hereby quashed and set aside and the matter is remanded to the trial court to decide and dispose of the matter after giving reasonable opportunities to the parties within a period of TWO MONTHS from the date of receipt of this order. The appellant shall bring on record all the heirs of the deceased complainant, Since the Criminal Case is of the year 1999, all the parties are directed to co-operate the learned trial court in early disposal of the matter, as aforesaid.
(RAJENDRA M. SAREEN,J) R.H. PARMAR Page 12 of 12 Downloaded on : Thu Mar 31 22:05:07 IST 2022