Gujarat High Court
Narendrakumar Madanlal Sharma vs Babubhai Chaturbhai Khant on 13 April, 2022
Author: Rajendra M. Sareen
Bench: Rajendra M. Sareen
R/CR.MA/22129/2021 JUDGMENT DATED: 13/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 22129 of 2021
In R/CRIMINAL APPEAL NO. 1937 of 2021
With
R/CRIMINAL APPEAL NO. 1937 of 2021
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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NARENDRAKUMAR MADANLAL SHARMA
Versus
BABUBHAI CHATURBHAI KHANT
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Appearance:
MR DHARMESH R PATEL(5592) for the Applicant(s) No. 1
MR RC KODEKAR, ADDL PUBLIC PROSECUTOR for the Respondent(s)
No. 2
MR BHAVESH J PATEL for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE RAJENDRA M. SAREEN
Date : 13/04/2022
ORAL JUDGMENT
Order in Criminal Misc. Application:
1. This is an application by the applicant - original complainant under Section 378(4) of the Code of Criminal Procedure, 1973, seeking leave of this Court to present an Page 1 of 6 Downloaded on : Wed Apr 13 21:47:47 IST 2022 R/CR.MA/22129/2021 JUDGMENT DATED: 13/04/2022 appeal against the judgment and order of acquittal, passed by the learned Judicial Magistrate First Class, Malpur, Dist; Arvalli dated 04.10.2021 in Criminal Case No. 247 of 2019.
2. Heard, learned advocate Mr. Dharmesh R. Patel for the applicant, Mr. Bhavesh J. Patel for the respondent No.1 and learned APP Mr. R. C. Kodekar for respondent - State and perused the impugned judgment and order of the trial Court.
3. Considering the avernments made in the application and submissions made by the learned advocates appearing for the respective parties, leave, as prayed for, is granted. This application is allowed. Rule is made absolute accordingly.
Order in Criminal Appeal:
1. The appeal is admitted. Learned APP waives service of notice of admission on behalf of respondent - State. Learned advocate Mr. Bhavesh J. Patel waives service of notice of admission on behalf of respondent - original accused.
2. The present appeal is filed under Section 378 of the Code of Criminal Procedure challenging the order of acquittal passed by the learned Judicial Magistrate First Class, Malpur in Criminal Case No.247 of 2019, whereby the trial Court has dismissed the complaint under Section 256(1) of the Code of Criminal Procedure filed under Section 138 of the Negotiable Instruments Act.
3. The short facts giving rise to the present appeal are that the appellant has advanced Rs.2,20,000/- to the respondent Page 2 of 6 Downloaded on : Wed Apr 13 21:47:47 IST 2022 R/CR.MA/22129/2021 JUDGMENT DATED: 13/04/2022 no.1 accused, which has not been returned back by the respondent No.1 - accused. The appellant has deposited a cheque given by the respondent No.1 - accused in the bank which has been returned without honored and therefore, present appellant - complainant has filed criminal complaint under the provisions of Negotiable Instrument Act. The appellant has filed Criminal Case No.247 of 2019 before the Judicial Magistrate First Class, Malpur, wherein after verification, summons has been issued to respondent No.1 -
accused. The respondent No.1 - accused has appeared through advocate in the criminal case and matter has been adjourned time to time on the one or other reason and also for pandemic. Thereafter, the trial Court has dismissed such Criminal Case No.247 of 2019 by order dated 04.10.2021 under Section 256(1) of the Code of Criminal Procedure as well as acquitted respondent No.1 - accused for the offence punishable under Section 138 of the Negotiable Instrument Act.
4. It is submitted by learned advocate Mr. Dharmendra Patel submitted that impugned order is bad in law. Without going into merits of the case the Court has dismissed the complaint. The trial Court has not considered the evidence of complainant on record and dismissed the complaint. The trial Court has not gone into the merits and applied technical approach and thus has not passed the judicious order. The impugned order is erroneous and contrary to law. As such it is prayed to quash and set aside the impugned order and remand back the matter to the trial Court in the interest of justice.
5. Learned advocate Mr. Bhavesh Patel appearing for respondent has supported the order of the trial Court and has Page 3 of 6 Downloaded on : Wed Apr 13 21:47:47 IST 2022 R/CR.MA/22129/2021 JUDGMENT DATED: 13/04/2022 contended that opportunity was granted to the complainant to remain present but complainant has not even taken the Court to proceed with the matter. As such, the trial Court had given an opportunity to the complainant but he has not availed the opportunity and therefore, the trial Court had rightly dismissed the complaint under Section 256 of the Code of Criminal Procedure and acquitted the accused. As such, no interference is required and prayed to dismiss the appeal.
6. Upon hearing the submissions of both the sides and perusing the order of the trial Court, it appears that the trial Court has dismissed the complaint under Section 256(1) of the Code of Criminal Procedure in the event of absence of the complainant. Considering the Rojkam of the case, which is placed on record by the learned advocate for the applicant, the complainant has filed the complaint on 21.06.2019. On 09.08.2019, the accused has not remained present and therefore, summons has been issued upon the accused. On 20.09.2019, accused remained present with his advocate and then matter was adjourned to 24.10.2019 for plea and thereafter matter was posed for cross examination of the complainant. However, from 10.04.2020 till 26.11.2020, matter was adjourned due to Covid - 19 and Courts were not functioning physically. On 26.11.2020, the matter was taken up again. As such on 26.11.2020, both complainant and accused were absent. On 29.01.2021, when the matter was taken up for further proceedings, complainant was present, advocate for the accused was present, but as the accused was not present and on account of an application for adjournment by the accused, the matter was adjourned on 19.02.2021, which went upto 07.04.2021 and on 07.04.2021, as the complainant was Page 4 of 6 Downloaded on : Wed Apr 13 21:47:47 IST 2022 R/CR.MA/22129/2021 JUDGMENT DATED: 13/04/2022 not present, the matter was adjourned to 21.05.2021. On 21.05.2021, due to Covid-19, the matter was adjourned and from 03.07.2021 till 04.10.2021, due to application of the accused, matter was adjourned. On 04.10.2021, the complainant has not remained present. Complainant was called upon by the Court. As a result, impugned order was passed on 04.10.2021.
7. Considering the Rojkam of the case, which is mirror of the case, it does not appear on record that the entire proceedings were delayed or lingered on account of fault of the complainant only. From the Rojkam, it appears that on some of the adjournments, accused has also applied for time. As such, both the parties were the reason behind delay of the case. At the same time, many adjournments are due to Covid, since at that time Courts were not functioning. As such from the Rojkam, it appears that the Court below has taken very technical view and dismissed the complaint. If it would have been the case that there is total negligence on the part of the complainant, it would have been a different case and Court would have passed the order of dismissal in event of constant absence of the complainant. But here in this case, considering the Rojkam on record, this type of activity on the part of the complainant does not come on record and it is clear that adjournments are sought by both the parties and therefore, this technical approach cannot be sustained. Moreover, it was incumbent upon the learned Judge to decide the case but in haste, the learned Judge has disposed of the case but not decided the case on merits. As such, the impugned order requires interference.
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8. Hence, the impugned order dated 04.10.2021 passed by the learned Judicial Magistrate First Class, Malpur in Criminal Case No.247 of 2019 is hereby quashed and set aside. Matter is remanded back to the trial Court to hear and dispose of it afresh, after giving opportunity to both the sides. The trial Court shall proceed further from the stage of cross examination of the complainant and decide the matter as expeditiously as possible. Both the parties are directed to co - operate with the proceedings of the trial Court.
9. With above directions, appeal stands disposed of.
(RAJENDRA M. SAREEN,J) DRASHTI K. SHUKLA Page 6 of 6 Downloaded on : Wed Apr 13 21:47:47 IST 2022