Gujarat High Court
Akbarkhan Ahmedkhan Bhatti vs State Of Gujarat on 23 July, 2024
NEUTRAL CITATION
R/CR.A/2556/2022 JUDGMENT DATED: 23/07/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2556 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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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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AKBARKHAN AHMEDKHAN BHATTI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR DEEP B KOTHARI(12220) for the Appellant(s) No. 1
MS TEJAL A VASHI(2704) for the Opponent(s)/Respondent(s) No. 2
PUBLIC PROSECUTOR for the Opponent(s)/Respondent(s) No. 1
SERVED BY RPAD (N) for the Opponent(s)/Respondent(s) No. 3,4
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 23/07/2024
ORAL JUDGMENT
1. This appeal is filed challenging the judgment and order of acquittal passed by the learned Judicial Magistrate Page 1 of 10 Downloaded on : Wed Jul 24 20:59:31 IST 2024 NEUTRAL CITATION R/CR.A/2556/2022 JUDGMENT DATED: 23/07/2024 undefined First Class, Talod in Criminal Case No.210 of 2020 dated 14.10.2022, acquitting the respondent-accused by dismissing the complaint for non-prosecution under section 256 of Cr.P.C.
2. It is the case of the complainant that complainant is doing business of Carting Contract and accused No.2 & 3 are directors of the accused No.1 company who is engaged in business of taking government contract. On demand of accused, goods were supplied by the complainant for an amount of Rs.58,81,900/- and to repay the same, cheque bearing No.000190 for the said amount was issued in favour of the complainant. On depositing the said cheque, it returned with an endorsement of "funds insufficient", therefore, after following due procedure under the N.I.Act complaint came to be filed before the learned trial court. 2.1. To substantiate the allegation, the complainant has produced documentary evidence and has produced the affidavit in form of the examination-in-chief thereafter, matter was posted for cross-examination from time to time. Learned trial court in the impugned judgment and order of acquittal dated 14.10.2022 has observed that, Page 2 of 10 Downloaded on : Wed Jul 24 20:59:31 IST 2024 NEUTRAL CITATION R/CR.A/2556/2022 JUDGMENT DATED: 23/07/2024 undefined despite sufficient opportunity learned advocate and complainant remained absent on various occasions and though the cost of Rs.500/- and Rs.1,000/- was awarded, the same was not paid by the complainant, therefore learned trial court has dismissed the complaint for non- prosecution which is subject matter of challenge before the Court.
3. Heard learned advocate Mr.Deep Kothari for the appellant-original complainant and learned advocate Ms.Tejal Vashi for the respondent-accused. 3.1. Learned advocate Mr.Kothari submits that due to aliment of the mother who is suffering from paralysis and the physiotherapy treatment which was advised by the Doctor is far away from village and due to bed ridden condition of the old aged mother since last 10 months, complainant did not remained present before the learned trial court. Learned advocate Mr.Kothari submits that though it is observed by the learned trial court that on various occasions the complainant and his advocate remained absent, however, from the Rojkam it transpires that learned advocate and complainant remained absent on 29.01.2022, 27.05.2022 and Page 3 of 10 Downloaded on : Wed Jul 24 20:59:31 IST 2024 NEUTRAL CITATION R/CR.A/2556/2022 JUDGMENT DATED: 23/07/2024 undefined 09.09.2022. Learned advocate Mr.Kothari submits that it is true that complainant did not remain present neither he could pay the cost, but as stated in the further affidavit, due to genuine reason he could not remain present. However, there was no malafide intention or delay tactics in not remaining present before the learned trial court. Learned advocate Mr.Kothari submits that genuine case was suffered due to not remaining present before the learned trial court and therefore, prayed to allow this appeal and order to restore the criminal case to its original file.
4. On the other hand learned advocate Ms.Tejal Vashi for the respondent-accused has vehemently opposed this appeal and submitted that it is observed by the learned trial court in the impugned judgment and order of acquittal that due to not remaining present the stage of the cross-examination was closed, twice the cost was awarded and despite sufficient opportunity was given, learned advocate and complainant both remained absent therefore, there was no alternative except to dismiss the complaint before the learned trial court. 4.1. Learned advocate Ms.Vashi submits that due to Page 4 of 10 Downloaded on : Wed Jul 24 20:59:31 IST 2024 NEUTRAL CITATION R/CR.A/2556/2022 JUDGMENT DATED: 23/07/2024 undefined negligent approach on the part of complainant, learned trial court is justifying in passing impugned judgment and order of acquittal and therefore, no interference in required and appeal deserves to be dismissed.
5. Considering the submissions made by the learned advocate for the respective parties and perusing the record and proceedings it transpires that complaint was filed by the complainant on 11.08.2020. Thereafter, due to lock-down of Covid-19 the case was posted on various occasions. On 25.08.2021, accused appeared and his plea was recorded below Exh.8 to 10 and thereafter, case was adjourned.
5.1. It transpires from the further record that on 05.01.2022, complainant did remain present, documentary evidence was exhibited and thereafter, matter was posted on 29.01.2022 for hearing of Exh.24 i.e exhibiting the documentary evidence of complainant. On that day the complainant and his advocate remained absent therefore, case was kept for hearing of Exh.24 on 23.02.2022. On 23.02.2022, learned advocate for the complainant remained present and has filed an application below Exh.27 for adjournment which was Page 5 of 10 Downloaded on : Wed Jul 24 20:59:31 IST 2024 NEUTRAL CITATION R/CR.A/2556/2022 JUDGMENT DATED: 23/07/2024 undefined granted by the learned trial court and case was further posted for 09.03.2022. On 09.03.2022, again the application was given below Exh.29 by the learned advocate for the complainant for adjournment which was granted with a cost of Rs.500/-. On 13.04.2022, neither presence nor absence of the complainant and his advocate was recorded. However, the matter was adjourned for hearing of Exh.24. On 27.05.2022 again complainant and his advocate remained absent, therefore, case was posted on 01.07.2022 for cross- examination and hearing of Exh.24.
5.2. On that day also, exemption application was filed by the learned advocate for the complainant below Exh.34 which was granted by the learned trial court and case was posted on 01.07.2022. On 01.07.2022 the order was passed below Exh.24 and tentative exhibits were given and case was posted on 22.07.2022. Again the complainant has filed an application for adjournment below Exh.58 which was granted with the cost of Rs.1000/- by the learned trial court and case was posted on 09.09.2022. On that day also the complainant and his advocate remained absent therefore, case was posted for Page 6 of 10 Downloaded on : Wed Jul 24 20:59:31 IST 2024 NEUTRAL CITATION R/CR.A/2556/2022 JUDGMENT DATED: 23/07/2024 undefined hearing of Exh.60 which is the application filed by the accused for dismissing the complaint for non- prosecution. Ultimately learned trial court has passed an order allowing application below Exh.60 on 14.10.2022 dismissing the complaint by exercising the power under section 256 of the Cr.P.C.
6. The further affidavit which is filed by the learned advocate for the complainant before this Court stating the reasons for not remaining present before the learned trial court while hearing was fixed. Relevant para is reproduced herein below "2) It is submitted that mother of the appellant namely bhasarinbibi Ahmedkhan Bhatti is aged about 70 years and she was suffering from nurological disorder since last 3 years. It is further submitted that due to ill health of the aged mother and more particularly in between April 2022 to August 2022, she had a symptoms of paralysis of lower limb of the body and thereafter from September 2022 to July 2023 for almost 10 months she remained paralyzed and was bed ridden. It is further submitted that appellant is residing in remote village of Tajpur Camp and nearest Primary Health Centre is situated at Akrund village, wherein mother of the appellant got a regular check up and treatment for the paralysis. It is trite to state that as per the advise given by the medical officer of the PHC, Akrund, Mother of the appellant is required to be accompanied by at least one family member for her routine since she is complete bed ridden Page 7 of 10 Downloaded on : Wed Jul 24 20:59:31 IST 2024 NEUTRAL CITATION R/CR.A/2556/2022 JUDGMENT DATED: 23/07/2024 undefined for 10 months. The medical certificate dated: 26/03/2024 given by the medical officer of Primary Health Centre, Akrund is annexed herewith and marked as Annexure A1 and A2.
4) It is submitted that Ld. Trial court fix the hearing of Exhibit 24 on dated: 05/01/2022 and after six adjournment Tentative Exhibit was given as Exhibit 35 to 57 on dated: 01/07/2022. It is submitted that between that period present appellant was remain absent on three occasions but at the same time advocate of the appellant was remain present on all the occasion and accused was also not present before the court, but be as it may be the reason for not paying cost of 500/- on dated: 09/03/2022 and cost of 1000/- on dated: 22/07/2022 is only that appellant remain absent in the court due to paralyzed mother of the appellant and she need appellant for her duly routine daily transportation to physio therapy center and PHC center routine check up, It is also submitted that appellant was totally disturb due to disturbance in the family and that is the bonafide mistake on the part of the appellant and it is not intention to delay the proceeding before the Ld. Trail court."
7. It is true that the learned trial court has provided sufficient opportunity to the complainant to remain present when the date was fixed. However, the reasons that are stated in the affidavit indicates that due to the illness of mother, complainant did not remain present and has not paid cost also. That may be a negligent approach, but it cannot be said that that was a dilated tactics for not conducting trial before the learned trial Page 8 of 10 Downloaded on : Wed Jul 24 20:59:31 IST 2024 NEUTRAL CITATION R/CR.A/2556/2022 JUDGMENT DATED: 23/07/2024 undefined court.
8. In view of the same, this Court is of the view that the judgment and order of acquittal which was passed by learned trial court is required to be set aside and Criminal Case is ordered to be restored and same is to be remanded back to the learned trial court for deciding afresh. However, as the complainant has not remained present on various occasions and the advocate was also absent for three occasions, this Court deem it fit to award the cost of Rs.25,000/- to the complainant for restoring the complaint before the learned trial court.
9. In view of the same, appeal is allowed, judgment and order passed by the learned Judicial Magistrate First Class, Kalol in Criminal Case No.210 of 2020 dated 14.10.2022 is quashed and set aside and Criminal Case is ordered to be restored to its original file and learned trial court is directed to decide the same after giving sufficient opportunity to led the evidence to both the parties.
10. The amount of cost of Rs.25,000/- be deposited by the complainant before this Court within a period of two weeks from the date of this order. On depositing the Page 9 of 10 Downloaded on : Wed Jul 24 20:59:31 IST 2024 NEUTRAL CITATION R/CR.A/2556/2022 JUDGMENT DATED: 23/07/2024 undefined same, Registry is directed to remit the entire amount as suggested by the learned advocate for the respondent Ms.Tejal Vashi in the account of Shishu Gruh, Paldi, Ahmedabad.
(M. K. THAKKER,J) ARCHANA S. PILLAI Page 10 of 10 Downloaded on : Wed Jul 24 20:59:31 IST 2024