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Om Corporation through Bhagubhai Trikamdas Patel v. State of Gujarat

Gujarat HC29 Nov 2022CR.A/1064/2022

Case brief

AI extract

What is this about?

In an appeal against an order dismissing a cheque bounce case for default under CPC 256, the High Court held the dismissal misplaced due to the accused's absence. The appeal was allowed, the order quashed, and the case restored to the trial court for merits decision.

What did the court decide?

The impugned order dated 12.03.2022 under CPC 256 was quashed. The Criminal Case was restored to the trial court to be decided on merits.

Om Corporation through Bhagubhai Trikamdas Patel Vs State… — Cheque Dishonour | Gujarat HC (2022)

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R/CR.A/1064/2022 JUDGMENT DATED: 29/11/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/CRIMINAL APPEAL NO. 1064 of 2022

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MS. JUSTICE GITA GOPI

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

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2 To be referred to the Reporter or not ?

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3 Whether their Lordships wish to see the fair copy of the judgment ?

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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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========================================================== OM CORPORATION THROUGH BHAGUBHAI TRIKAMDAS PATEL

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Versus

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STATE OF GUJARAT

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Appearance:

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MR MAULIN G PANDYA(3999) for the Appellant(s) No. 1

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MR PUNAM G GADHVI(3724) for the Opponent(s)/Respondent(s) No. 2 MS KEYA D PATEL(11258) for the Opponent(s)/Respondent(s) No. 2 MR.HARDIK MEHTA APP for the Opponent(s)/Respondent(s) No. 1

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CORAM: HONOURABLE MS. JUSTICE GITA GOPI

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Date : 29/11/2022

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ORAL JUDGMENT

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The present appeal under Section 378(4) of the Code of Criminal Procedure 1973 is preferred

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Page 1 of 11

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R/CR.A/1064/2022 JUDGMENT DATED: 29/11/2022

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against the judgment and order of acquittal dated 12.03.2022 passed by the learned Additional Chief Judicial Magistrate, Idar in Criminal Case No.935 of 2011, whereby the learned trial Court Judge acquitted the accusedrespondent No.2 herein.

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Advocate Mr.Punam Gadhvi and Ms.K.D.Patel, learned advocate for the respondent no.2 – Prafulbhai Nandlal Tilavat, who is accused in Criminal Case No.935 of 2011 filed under Section 138 of the N.I.Act before the Additional Chief Judicial Magistrate, Idar.

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On verification, by way of order dated 27.04.2011, the case was registered and the summons was issued against the accused, making it returnable on 27.06.2011. As per the Rojnama, vide Exhibit-4, prayer was made for issuance of summons by way of Registered PostA.D. Exhibit-5 is Vakaltnama on behalf of the accused filed on 04.08.2011. Exhibit-7 is the list

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Page 2 of 11

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R/CR.A/1064/2022 JUDGMENT DATED: 29/11/2022

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of documentary evidence of the complainant. The matter was posted on 15.02.2012, where accused advocate filed an adjournment application and vide Exhibit-10, the statement of the accused was recorded on 20.06.2011. The record and proceedings shows that vide Exhibit-16, on 10.10.2012, the application to produce the documentary list was granted, vide Mark 17/1 to 17/11, the documents were produced, and on the very same day vide Exhibit-18, the evidence of the complainant was recorded.

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3.1 After frequent adjournment on applications from both the sides, the proceedings could progress on 20.09.2013 from the side of the complainant by producing documents vide Mark 36/1 to 36/30. Exhibit-37 is the Affidavit-in-Chief of the Complainant and thereafter the matter was adjourned thrice and on 20.11.2013, the documents produced by the complainant were ordered to be exhibited. The record reflects that the documents were put in evidence from

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Page 3 of 11

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R/CR.A/1064/2022 JUDGMENT DATED: 29/11/2022

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Exhibit-44 to Exhibit-83, and thereafter on the next adjournment i.e. on 18.12.2013, the Court was on leave while the parties were also not present. On 29.01.2014, adjournment was sought for from the side of the accused and the matter was posted for further cross-examination. On 14.12.2014, since the accused was not present before the Court, an application, Exhibit-85, was moved by the complainant for issuance of warrant.

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3.2 The proceedings shows that from the date i.e. 20.03.2014, 16.04.2014, 12.05.2014, 17.06.2014, though the warrant was in force, accused did not appear and on 24.07.2014, vide Exhibit-86, again an application was moved for issuance of bailable warrant against the accused and the warrant remained unserved. Thereafter, after about seven adjournments, since proceedings stood transferred to another Court of Additional Chief Judicial Magistrate, and on 27.03.2015, Notice was issued to the complainant. On

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Page 4 of 11

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R/CR.A/1064/2022 JUDGMENT DATED: 29/11/2022

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10.04.2015, adjournment was sought by the complainant’s advocate and thereafter matter continued to be adjourned for the service of warrant to the accused through police and thereafter on 24.06.2017 there was an order of issuance of warrant through DSP Jamnagar. On 28.12.2018, the Additional Chief Judicial Magistrate, First Class, Idar, passed an order to place the matter on dormant file in accordance to para-211 of the Criminal Mannual with further order of issuance of process quarterly against the accused. Ultimately by order dated 12.03.2022, the matter was dismissed under Section 256 of the Criminal Procedure Code observing that the matter has remained pending for a long period as the applicant has remained negligent in proceeding with the matter; thus, in the special sitting, the case was ordered to be dismissed by default observing as of the carelessness, negligence and continuous absence of the complainant.

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Page 5 of 11

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R/CR.A/1064/2022 JUDGMENT DATED: 29/11/2022

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Mr.Maulin Pandya, learned advocate for the appellant submitted that the whole proceedings shows that, initially the accused remained present; he was represented by an advocate when the documents and the evidence-in-chief were recorded, the accused did not appear to cross-examine the complainant. Mr.Pandya, submits that the learned trial Court Judge instead of dismissing the matter in the special sitting under Section 256 ought to have observed the proceedings and should have followed the directions given in the judgment of Indian Bank Association Vs. Union of India, reported in (2014) 5 SCC 519 .

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4.1 Mr.Pandya submitted that, the learned trial Court Judge ought to have followed the procedure under Section 145 of the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’), and should have given the judgment, since the examination-in-Chief and the relevant documents were already exhibited and there was no

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R/CR.A/1064/2022 JUDGMENT DATED: 29/11/2022

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application from the side of accused under Section 145(2) of the N.I.Act for recalling the complainant, who has already given his evidence by way of examination-in-chief, and thus trial Court should have rather considered the case on merits.

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The submissions made by learned advocate Mr.Pandya requires consideration. The record and proceedings suggest that the evidence from the side of the complainant was recorded in presence of the accused, and thereafter when the matter was posted for cross-examination, the accused chose to remain absent; warrant was also ordered to be issued, which still remain unserved and ultimately the matter was placed in dormant file. The case of Indian Bank Association (supra) has considered the Amendment Act, 2002 and directions were issued with observations to give effect to the amendment in its letter and spirit. The directions are reproduced herein under:

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R/CR.A/1064/2022 JUDGMENT DATED: 29/11/2022

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“(1) The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the NI Act is presented, shall scrutinise the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.

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(2) The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved, immediate follow-up action be taken.

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(3) The court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if

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Page 8 of 11

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R/CR.A/1064/2022 JUDGMENT DATED: 29/11/2022

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such an application is made, Court may pass appropriate orders at the earliest.

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(4) The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 CrPC to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) of the NI Act for recalling a witness for crossexamination.

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(5) The court concerned must ensure that examination-in-chief, crossexamination and re-examination of the complainant must be conducted within three months of assigning the case. The court has option of accepting affidavits of the witnesses instead of examining them in court. The witnesses to the complaint and the accused must be available for cross-examination as and when there is direction to this effect by the Court. ”

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Page 9 of 11

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R/CR.A/1064/2022 JUDGMENT DATED: 29/11/2022

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Here, in this case, no application was moved from the side of the accused under Section 145(2) of the N.I. Act for recalling of the complainant as a witness for cross-examination. In the present case, the accused - Prafulbhai Nandlal Tilavat, proprietor of Divya Drinking Waters, is represented by Advocates on record Mr. Punam Gadhvi and Ms. K.D. Patel. The Notice was issued by this Court on the very same address, which was noted in the complaint. It appears that the accused has tried to manage for non-service of the warrant against him. Under no circumstances, such attitude of the accused can be appreciated or tolerated. It is an absolute fault of the accused that the matter had gone into dormant file. Advocate Mr. Punam Gadhvi, submitted in favour of the impugned order, however, no clarification has been given by the Advocate for non-service of warrant against the accused – respondent no.2 for such a long period. The matter requires decision on merits. The irresponsible and

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Page 10 of 11

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R/CR.A/1064/2022 JUDGMENT DATED: 29/11/2022

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deliberate conduct of accused has led to dismissal of case, where there appears to be no fault of the complainant.

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Considering the above facts and in view of the reasons given above, the appeal is allowed . The order dated 12.03.2022 passed in special sitting by the learned Additional Chief Judicial Magistrate, Idar in Criminal Case No.935 of 2011 is quashed and set aside. The Criminal Case No.935 of 2011 is ordered to be restored in its original status on the file of the concerned Court and the concerned Court is hereby directed to decide the case on merits in accordance with law. It is also directed to the accused to remain present before the trial Court, failing which, the judgment be declared in his absence. Record and Proceedings, if any, be sent back to the concerned Court.

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(GITA GOPI,J)

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Manoj

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Om Corporation through Bhagubhai Trikamdas Patel v. State of Gujarat

Case brief

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Om Corporation through Bhagubhai Trikamdas Patel v. State of Gujarat

Case brief

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