Gujarat High Court
Harisinh Bhagwatsinh Sarvaiya vs State Of Gujarat & on 8 July, 2013
Equivalent citations: 2014 CRI LJ (NOC) 43, (2014) 135 ALLINDCAS 563 (GUJ), 2014 CRI. L. J. (NOC) 43 (GUJ.), 2013 ACD 1103 (GUJ), 2013 CRILR(SC MAH GUJ) 666, (2013) 3 GUJ LR 2723, 2014 (84) ACC (SOC) 74 (GUJ)
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
HARISINH BHAGWATSINH SARVAIYA....Appellant(s)V/SSTATE OF GUJARAT R/CR.A/36/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL NO. 36 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI =========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ================================================================ HARISINH BHAGWATSINH SARVAIYA ....Appellant Versus STATE OF GUJARAT & 1.... Respondents ================================================================ Appearance: MR PREMAL S RACHH, ADVOCATE for the Appellant MR HK PATEL, ADDL. PUBLIC PROSECUTOR for Respondent No. 1 MR VIJAL P DESAI, ADVOCATE for Respondent No. 2 =========================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 08/07/2013 ORAL JUDGMENT
The present appeal is directed against the judgment and order dated 29.10.2012, passed by the learned 9th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Jamnagar (hereinafter referred to as the Trial Court ), in Criminal Case No.2100 of 2012, whereby, the complaint of the appellant (original complainant) under Section 138 of the Negotiable Instruments Act, 1881 ( the Act for short), has been dismissed in exercise of power under Section 256 of the Code of Criminal Procedure, 1973 ( the Code for short), resulting in the acquittal of respondent No.2 original accused.
The brief facts of the case as emerging from the record are that, the appellant and respondent No.2 were known to each other. As per the version in the complaint, respondent No.2 required money for business purposes and borrowed an amount of Rs.2 lakhs from the appellant. Respondent No.2 gave an Account Payee Cheque No.416537 dated 01.02.2012 of the Commercial Cooperative Bank Limited to the appellant towards this debt. This cheque was dishonoured by the Bank on 14.12.2012, on the ground of insufficient funds . The appellant issued a notice to respondent No.2 on 21.02.2012, by Registered Post A.D., which was received by respondent No.2 on 23.02.2012. The accused neither replied to the notice nor paid the amount borrowed from the complainant, which led to the filing of the complaint under Section 138 of the Act on 05.04.2012.
The plea under Section 251 of the Code came to be recorded on 17.07.2012 at Ex.7. Thereafter, on 21.08.2012, the learned advocate for the appellant sought time to produce evidence, which was granted by the Trial Court. The next date for the case was fixed for 28.09.2012. On that day, neither the appellant nor his advocate remained present but the accused was present. The case was adjourned to 09.10.2012 and thereafter, to 17.10.2012. On both these dates, the complainant and his advocate were not present. The accused was present on both dates. The impugned order dismissing the complaint was passed on 29.10.2012. It is recorded in the said order that neither the appellant nor his advocate had remained present till 5:30 in spite of the matter being called out repeatedly. It is recorded that, as the complainant has not remained present for a long time, he is not interested in prosecuting the case. The Trial Court proceeded to dismiss the complaint, in exercise of power under Section 256(1) of the Code, giving rise to the present appeal.
Mr.Premal S.Rachh, learned advocate for the appellant, has submitted that the impugned judgment and order of acquittal is unjust and contrary to the settled legal position. The Trial Court has failed to appreciate the facts and provisions of law in proper perspective, therefore, the impugned order is unsustainable in law. It is further submitted that the learned advocate for the appellant had sought time on 21.08.2012, for the purpose of producing evidence. The Trial Court had allowed the request and kept the matter on 28.09.2012. However, due to a bona fide mistake and inadvertence, the advocate for the appellant failed to post the next date of hearing, that is, 28.09.2012, in his case diary. In the circumstances, he was unaware of the next date and could not remain present on that date and the three subsequent dates fixed by the Trial Court. It is submitted that it is only in the first week of December, 2012, when the appellant contacted his advocate to inquire regarding the next date of hearing, that the advocate checked up the status and realized the aforesaid mistake. Learned advocate for the appellant further submits that the appellant has a good case on merits and the Trial Court ought not to have exercised power under Section 256 of the Code in such a mechanical manner. Moreover, the appellant ought not to be penalized for the oversight or mistake committed by his advocate. It is submitted that the impugned order has caused great hardship and prejudice to the appellant, therefore, the same may be quashed and set aside and the appeal allowed.
In support of the above submissions, reliance has been placed upon a judgment of this Court in Ratanlal Gulabchand Gupta v. Sahara Sev Gruh Udyog Bhandar and Ors. reported in 2001(4) GLR 2987.
Mr.H.K.Patel, learned Additional Public Prosecutor, has submitted that the dispute is between private parties, to which the State is not a party, therefore, the Court may pass an appropriate order.
Per contra, Mr.Vijal P.Desai, learned advocate for respondent No.2, has vehemently opposed the submissions advanced by learned counsel for the appellant and has submitted that, looking to the provisions of Section 256 of the Code, the Trial Court has not committed any error in passing the impugned order and acquitting respondent No.2. It is submitted that neither the appellant nor his advocate have remained present on four consecutive dates, therefore, the Trial Court has correctly dismissed the complaint and acquitted respondent No.2.
On behalf of respondent No.2, reliance has been placed upon a judgment of the Supreme Court in S.Rama Krishna v.S.Rami Reddy (Dead) by His LRS. And Others - (2008)5 SCC 535.
This Court has heard learned counsel for the respective parties and perused the original record and proceedings.
It is clear from the impugned order dated 29.10.2012, that the power under Section 256 of the Code has been exercised as the appellant and his advocate were both not present on four consecutive dates, as mentioned in the order. The submission advanced on behalf of the appellant is that the default has occurred as his learned advocate inadvertently failed to post the next date of hearing, that is, 28.09.2012, in his diary. Resultantly, he did not remain present on that date and missed the subsequent three dates as well. The complainant also had no knowledge of the dates of hearing, therefore could not appear on those dates. It was only when the appellant inquired about the case did this mistake came to light.
In the above factual background, reference may be made to the provisions of Section 256 of the Code, which are reproduced hereinbelow:
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 hereinabove 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.
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.
(emphasis supplied) Though it is not disputed that the power to dismiss a complaint for non-appearance of the complainant has been conferred by Section 256 of the Code, at the same time, this provision of law also confers discretion upon the learned Magistrate to adjourn the hearing of the case to some other day, if he thinks it proper to do so. The approach to be adopted by the Court in each situation would depend on the facts and circumstances of the case. However, it would be a prudent exercise of power if a balance is maintained, weighing the facts against the interest of justice.
In this context, it would be appropriate to refer to the decision in State of Gujarat v. Keshavram Shivram Devmurari & Anr. - 1977 18 GLR 524, wherein this Court has held as below:
5. Under Sec.256 of the Code the Magistrate has no doubt power to acquit the accused if the complainant does not appear on the day appointed for the appearance of the accused or any day subsequent thereto. This power has been conferred on the Magistrate obviously for the ends of justice and with a view to see that an accused person is not subjected to any undue harassment. By way of abundant caution, the very section further provides that it is not obligatory on the part of the Magistrate to dismiss the complaint and he has been clothed with the power to adjourn the hearing of the case to some other day. The proviso annexed to this section further makes the position crystal clear. It lays down that where the complainant is represented by a pleader 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. The situation as was before the learned Magistrate on the day in question squarely fall within the proviso and still the learned Magistrate has acted under the main part of this section. This is really unfortunate and it is hoped that repetition of such instances would not be there in future in the court of this learned Magistrate or in the court of any other Magistrate. A copy of this judgment is directed to be circulated to all the Magistrates in the State.
(emphasis supplied) Further, in Ratanlal Gulabchand Gupta v. Sahara Sev Gruh Udyog Bhandar and Ors. (supra), this Court has held as below:
3. ....In our this adversary system in the country there is nothing wrong of dependent of a litigant who have chosen to engage an Advocate in the matter on him. In the case of this nature, on every date is fixed or the proceedings are taken up, the complainant s presence is not necessary and more so, where he has engaged an Advocate. It is unfortunate that the Advocate was not sufficiently vigilant in conducting the matter. But for this act of the Advocate, why the poor complainant should suffer. On 24-10-1996, the petitioner was present in the Court and 24-12-1996 was the next date fixed therein. On that date the matter was not on the Board. The best course available in these facts to the petitioner was to contact his Advocate and I do not find any perversity in the approach of the litigant to act in accordance with the advice of the Counsel. I fail to see why the case of the petitioner has not been accepted by both the Courts below. A complainant, on his absent, may face consequences of the dismissal of the complainant as well as discharge of the accused. How absence of the complainant in the criminal case is beneficial to him. The absence of the complainant in the matter results in dismissal of his complaint, he has to take all the precautions and in this case petitioner did and he engaged an Advocate. On 24-12-1996 the next date was not fixed in case could not be known by the petitioner and I do not find any abnormality in the approach of the petitioner to rely upon the advice of his Advocate. The Advocate has told him to inform him the next date fixed in the matter. It is is a different matter that the Advocate has not informed the petitioner the next date fixed in the matter.
Though Advocate is supposed to take all the care in the matter of his client, but for his action, omission or lapse, ultimately the poor litigant has to pay heavily. It is not the case of the respondents that the complainant petitioner has not engaged an Advocate in this case. He had engaged the Advocate to avoid any adverse order in the complaint for his absence and to defend his case. It is unfortunate that the Advocate did not remain present and for this act, he has paid heavily. By keeping himself absent in the proceedings the complainant is not benefited. The trial Court as well as the Revisional Court has not considered this aspect of the matter. They proceeded with totally a technical approach despite the fact that in series of decisions this Court their approach is not appreciated. Even for the time-being it is accepted that the complainant was not present, how far it is justified on the part of the trial Court to dismiss the complaint where he engaged an Advocate to represent him. It is the case where trial Court has punished the petitioner for the inaction or omission of the Advocate. The learned Court below should not have given any premium to the accused for his benefit on the ground of the absence of the Advocate. In the facts of this case, the orders passed by both the Courts below cannot be allowed to stand. A time comes where the trial Court as well as the Sessions Court are to look into the matter with justice-oriented approach.....
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In such matters, the approach of the Courts should have been pragmatic and not pedantic. If the matters are decided by use of the power to dismiss the matter for default, it does not give a good name to the institution. Where the litigants approach the Court for redressal of grievances, the cases are to be decided on merits with a judicial approach rather than the Courts exercising power to dismiss the matter for default.
(emphasis supplied) In Mohd. Azeem Vs. A. Venkatesh and another reported in (2002)7 SCC 726, the Supreme Court has held as below:
3. From the contents of the impugned order of the High Court, we have noticed that there was one singular default in appearance on the part of the complainant. The learned Judge of the High Court observes that even on earlier dates in the course of trial, the complainant failed to examine the witnesses. But that could not be a ground to dismiss his complaint for his appearance (sic absence) on one single day. The cause shown by the complainant of his absence that he had wrongly noted the date, has not been disbelieved. It should have been held to be a valid ground for restoration of the complaint.
In our opinion, the learned Magistrate and the High Court have adopted a very strict and unjust attitude resulting in failure of justice. In our opinion, the learned Magistrate committed an error in acquitting the accused only for absence of the complainant on one day and refusing to restore the complaint when sufficient cause for the absence was shown by the complainant.
(emphasis supplied) Considering the factual matrix of the present appeal in light of the principles of law enunciated by this Court and the Supreme Court in the above-quoted judgments, it is clear that the result of the impugned order would be that the appellant is being penalised for the mistake committed by his advocate in not posting the next date of hearing in his diary. This resulted in his missing the next three dates as well. The cause shown by the appellant appears to be reasonable and has not been disputed. Exercise of power ought to be pragmatic and not technical. Instead of being heard and decided on merits, the complaint of the appellant has been thrown out due to the absence of the advocate, giving a premium to the accused.
Looking to the totality of the fact situation in the present case, it is not as though the appellant or his lawyer were absent for years together, as was the case in S.Rama Krishna v.S.Rami Reddy (Dead) by His LRS. And Others (supra), relied upon by learned advocate for respondent No.2. In that case, the matter had remained pending for more than five years. The original complainant had died and his heirs had failed to prosecute the application for substitution. The appellant (accused therein) had been attending the case for a long time. He was present on not less than 20 occasions after the death of the original complainant. In that context, that the Supreme Court allowed the appeal of the appellant therein reversing the judgment of the concerned High Court. However, the factual matrix in the present case is totally different. This judgment would, therefore, not be applicable to the facts of the present case.
The explanation offered by the appellant that his advocate could not remain present as he inadvertently forgot to post the next date of hearing in his diary, leading to further defaults on four occasions, appears to be credible. It is not as though the default was deliberate or continued for a number of years. It would be highly unjust and unfair to penalize the appellant because of the default committed by his advocate, in such circumstances.
As a result of the above discussion, the appeal deserves to be allowed, and is allowed.
The impugned order dated 29.10.2012 passed by the learned 9th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Jamnagar, in Criminal Case No.2100 of 2012, is quashed and set aside. The learned Magistrate is directed to restore Criminal Case No.2100 of 2012 to its original status on file and proceed with the Trial, in accordance with law.
It is clarified that while passing this order, the Court has not entered into the merits of the case.
Direct Service is permitted.
(SMT. ABHILASHA KUMARI, J.) sunil Page 18 of 18