Gujarat High Court
Hitesh Rasiklal Shah vs Mahavir Ghevarchad Chopra & ... on 4 September, 2015
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
R/CR.A/1836/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL APPEAL NO. 1836 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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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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HITESH RASIKLAL SHAH....Appellant(s)
Versus
MAHAVIR GHEVARCHAD CHOPRA & 1....Opponent(s)/Respondent(s)
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Appearance:
MR NB TIWARI, ADVOCATE for the Appellant(s) No. 1
MR VIRAL M PANDYA, ADVOCATE for the Appellant(s) No. 1
MR JR DAVE, ADVOCATE for the Opponent(s)/Respondent(s) No. 1
MR. H.L.JANI, APP for the Opponent(s)/Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 04/09/2015
ORAL JUDGMENT
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HC-NIC Page 1 of 9 Created On Fri Sep 11 00:08:55 IST 2015 R/CR.A/1836/2005 JUDGMENT
1. The present Appeal is filed under Section 378 of the Code of Criminal Procedure, challenging the impugned judgment and order at Annexure-E dated 23.10.2002 below application for restoration and also the order at Annexure-F in Revision Application No. 199 of 2002 passed by the Sessions Court dated 31.3.2003.
2. The facts of the case briefly narrated are that the Appellant - Original Complainant lodged a complaint under Section 138 of the Negotiable Instruments Act which came to be registered as Criminal Case No. 4706 of 1996. As stated in detail the matter was adjourned from time to time. The order came to be passed, by which the complaint of the complainant was dismissed for default vide order dated 17.8.2001 in exercise of power under Section 256 of the Cr.PC. It is this order for which the complainant filed an application for restoration and thereafter revision as stated above. Therefore the present Appeal has been preferred challenging both the orders and also the dismissal of the complaint.
3. Heard learned Advocate Shri Viral M. Pandya for the Appellant, learned Advocate Shri J.R.Dave for Respondent No.1 and learned APP Shri H.L.Jani for Respondent No.2-State.
4. Learned Advocate Shri Viral Pandya referred to the rojkam and Page 2 of 9 HC-NIC Page 2 of 9 Created On Fri Sep 11 00:08:55 IST 2015 R/CR.A/1836/2005 JUDGMENT submitted that the complaint was pending since 1996 and it was not taken up till 2000. Thereafter the application was made for discharge by Respondent No.1 (Original Accused). However, in the meanwhile, due to earthquake he could not remain present. Learned Advocate Shri Pandya submitted that therefore though notice was issued on 1.1.2001 making it returnable on 9.2.2001 it never came on the board and the Appellant - Applicant was not served with the notice. However, as reflected from the rojkam even on 7.8.2001 the notice has not returned back and in spite of that the court below in exercise of power under Section 256 of Cr.PC dismissed the complaint and acquitted Respondent No.1- Accused which is challenged on the ground that the Appellant is not at fault. Further, had the notice been served, the matter could have proceeded and therefore it cannot be said that he was negligent.
5. Learned Advocate Shri J.R.Dave for Respondent No.1 however submitted that the application for restoration is not maintainable. The complainant ought to have preferred appeal. He submitted that the present appeal is not maintainable as it is challenging only the order passed below application for restoration of the complaint and the order of revision and therefore this appeal cannot be said to be against the order of dismissal of the complaint. He further Page 3 of 9 HC-NIC Page 3 of 9 Created On Fri Sep 11 00:08:55 IST 2015 R/CR.A/1836/2005 JUDGMENT submitted that it shows that the complainant was negligent and could not offer any explanation and therefore the present appeal may not be entertained. In support of his submission, learned Advocate Shri J.R.Dave has referred to and relied upon the judgment of the Hon'ble Apex Court reported in 1986 CrI.L.J.1074 - Maj. Genl., A.S.Gauraya and anr. v. S.N.Thakur and anr. and submitted that as the Magistrate has no inherent power to restore the case, the application for restoration was misconceived and therefore the present appeal challenging the said order is not maintainable. He has also referred to and relied upon the judgment and order of the Hon'ble Apex Court in reported in (2008) 5 SCC 535 - S.Rama Krishna v. S.Rami Reddy (D) By His Lrs. & Ors. and tried to emphasize that the observations made therein are with regard to the exercise of jurisdiction by the High Court under Section 378 of Cr.PC. He therefore tried to emphasize that the speedy trial is a fundamental right of the accused and therefore the order was set aside. He therefore submitted that the present Appeal may not be allowed and it may be dismissed.
6. In rejoinder, learned Advocate Shri Viral Pandya for the Appellant submitted that the present appeal has been filed with application seeking leave to appeal with condonation of delay which has been granted by the High Court after issuing notice to the other side. He Page 4 of 9 HC-NIC Page 4 of 9 Created On Fri Sep 11 00:08:55 IST 2015 R/CR.A/1836/2005 JUDGMENT therefore submitted that it is too late now to contend about the maintainability when the appeal is admitted and it is for final hearing.
7. Learned APP Shri H.L.Jani assisted the court referring to the rojkam that the notice was issued to the Appellant which has never been served and thereafter the complaint came to be dismissed in violation of rules of natural justice apart from any other aspect of the matter.
8. In view of this rival submissions, it is required to be considered whether the present appeal deserves consideration.
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 Page 5 of 9 HC-NIC Page 5 of 9 Created On Fri Sep 11 00:08:55 IST 2015 R/CR.A/1836/2005 JUDGMENT 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 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 Page 6 of 9 HC-NIC Page 6 of 9 Created On Fri Sep 11 00:08:55 IST 2015 R/CR.A/1836/2005 JUDGMENT 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 a judgment 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 as it provides an opportunity to both the sides. The Hon'ble Apex Page 7 of 9 HC-NIC Page 7 of 9 Created On Fri Sep 11 00:08:55 IST 2015 R/CR.A/1836/2005 JUDGMENT 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. Page 8 of 9 HC-NIC Page 8 of 9 Created On Fri Sep 11 00:08:55 IST 2015 R/CR.A/1836/2005 JUDGMENT 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.
R&P to be sent back.
(RAJESH H.SHUKLA, J.) JNW Page 9 of 9 HC-NIC Page 9 of 9 Created On Fri Sep 11 00:08:55 IST 2015