Gujarat High Court
Arpan Rameshbhai Dalal vs State Of Gujarat on 18 April, 2018
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.A/424/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 424 of 2018
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ARPAN RAMESHBHAI DALAL
Versus
STATE OF GUJARAT
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Appearance:
MR UTPAL M PANCHAL(1075) for the PETITIONER(s) No. 1
MR JIGAR G GADHAVI (5613) for the RESPONDENT(s) No.2
MR HK PATEL, APP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 18/04/2018
ORAL ORDER
1. At an admission stage, this matter is taken up for final hearing with the consent of both the sides.
2. This Appeal arises from judgment and order of acquittal passed by the learned Additional Chief Judicial Magistrate and 7th Additional Senior Civil Judge, Surat in Criminal Case No. 192/2003 under Section 138 of the Negotiable Instruments Act 1881 (hereinafter referred to as "the NI Act") has acquitted the respondents No. 2-original accused vide its judgment and order dated 11.02.2017.
2. This has aggrieved the appellant-original complainant who is before this Court seeking to quash and set aside the judgment and order.
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R/CR.A/424/2018 ORDER
3. A cheque of Rs. 1,50,000/-, bearing No. 044371, drawn on the Gujarat Industrial Co.Op. Bank Limited, Parshi Sheri Branch, Surat by the drawer dated 06.02.2003 had been dishonoured when presented to the Bank of India, Lalgate, Surat Main Branch on 07.02.2003. On completing mandatory requirements of issuance of notice within a stipulated time period, no response was received from the respondent no.2. When the criminal complaint came to be lodged, being Criminal Case No. 192/2003, the Court had issued summons to the respondent no.2. The rojkam suggests that the respondent no.1 already remained present. The matter was transferred to the court of learned Additional Chief Judicial Magistrate and 7th Additional Senior Civil Judge, Surat on 14.07.2014. On couple of occasions, the matter was adjourned and on 30.01.2016, the Court issued notice to the complainant, which was returned unserved and on 10.03.2016, once again, notice was issued for about four times, the matter had been posted for the complainant to remain present. It appears that on one occasion, the appellant and the respondent no.2, both remained absent and the Court had issued bailable warrant against both of them. However, as can be seen from the order impugned, the order of dismissal is on 11.02.2017, which is as under:
Order under Exhibit 1 in Special Sitting Page 2 of 6 R/CR.A/424/2018 ORDER
1. Heard & have perused the record.
2. In view of the observation made in the rozkam the said case is hereby ordered to the disposed off being dismissed for the want of prosecution. Accused is hereby ordered to be acquitted forthwith.
3. Pronounced in the open Court.
4. This order deserves interference for more than one reasons;
firstly, on 11th February 2017, it was second Saturday and possibility of there being court proceedings is nil. Had there been Lok Adalat, even then, how could the order of dismissal of the case for want of prosecution be made as it is impermissible to so do it in Lok Adalat. It is a settled law and on couple of occasions, the Apex Court and even this Court also had categorically directed that no dismissal order can be made during Lok Adalat. Lok Adalat is meant for parties to negotiate and arrive at an amicable settlement. For adjudication of the matters on merits or for that matter, any dismissal for want of prosecution, the same is permissible on a full- fledged court working day. In other words, it is also impermissible on a holiday or in Lok Adalat, in Special Sitting to dismiss any complaint under Section 256 of the Code, as has been done in this case. This Court ascertained from the Registry with regard to the special sitting on a public holidays, or during Lok Adalat and it has been convened that pursuant to the communication from National Legal Services Authority (NALSA) on 31st December 2013, where Page 3 of 6 R/CR.A/424/2018 ORDER the Authority while giving broad directions to take up matters pending in the courts of various levels for disposal, proposed special sitting of the Magistrate to be "organized to dispose of petty matters under the Municipal Laws, Shops and Establishment Act, Local Police Acts, Excise Act, prosecution for violation of Labour laws, such as Minimum Wages Act, Traffic Challans etc., including for stopping of proceedings under Section 258 CrPC". Accordingly, the Chair-persons of all the District Legal Services Authorities and the Legal Services Committees have been directed to dispose of the petty matters in the above referred categories by the Gujarat State Legal Services Authority (GSLSA).
5. Section 256 of the Code of Criminal Procedure permits the court to acquit the accused, if the complainant does not remain present on a stipulated date, when the date was appointed for appearance of the accused and if he does not appear, learned Magistrate is authorized to acquit the accused unless for some reason, he thinks it proper to adjourn the hearing of the case to some other day. It is also provided further in the proviso of this Section that where the complainant is represented by a pleader or by an officer conducting the prosecution, or where the Magistrate is of opinion that personal attendance of the complainant is not necessary, he may dispense with his attendance and proceed with Page 4 of 6 R/CR.A/424/2018 ORDER the case. Thus, this proviso also provides for acquittal of the accused, if the complainant chooses not to appear on stipulated date. It is apparent from the Rojnama that the complainant had not remained present on couple of occasions and for that matter, even the respondent no.2 has chosen to do the same. Additionally, despite issuance of notice, the complainant had chosen not to remain present. However, to exercise such powers of dismissal of matter for want of prosecution on a public holiday is impermissible, even in the aforesaid circumstances.
6. Resultantly, the impugned judgment and order shall have to be quashed, and the order of acquittal also consequently shall need to be interfered with. Accordingly, this Appeal stands allowed. The learned lower court shall restore the matter, being Criminal Case No. 192/2003 to its file.
7. While allowing the Appeal, this Court notices that the matter is of the year 2003, and therefore, the following directions are necessary:
(a) Both the parties shall appear before the concerned Court on 10th May 2018. They shall also choose to appear through their learned advocates on the stipulated date.
Complainant shall remain present to prosecute, without causing any further delay and so shall remain present the Page 5 of 6 R/CR.A/424/2018 ORDER respondent no.2, unless his personal presence is exempted by the Court by a specific order.
(b) No adjournment shall be sought for by the either side, and if at all the same is necessitated, the court may chose to grant it reluctantly or with cost. Unless of course, there are circumstances, which would be inevitable requires grant of adjournment.
(c) As far as possible, matter shall be completed within a period of six months, where both the parties shall cooperate. This appeal is accordingly allowed with cost, which is quantified at Rs. 2,500/- to be paid by the appellant to the Surat Advocates' Law Library.
(Ms. SONIA GOKANI, J.) ksdarji Page 6 of 6