Allowed

Prakashkumar Kanjibhai Kholvadiya v. State of Gujarat

Gujarat HC28 Nov 2022CR.A/1199/2022

Case brief

AI extract

What is this about?

The High Court held that the trial court erred in dismissing a cheque bounce case for default where the complainant was represented by counsel. The High Court allowed the appeal, quashed the discharge order, and restored the file for trial on merits.

What did the court decide?

The impugned order dated 09.05.2022 was quashed and set aside, and the criminal appeal was restored to the original file to be tried on merits.

Prakashkumar Kanjibhai Kholvadiya Vs State of Gujarat — Cheque Dishonour | Gujarat HC (2022)

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R/CR.A/1199/2022 JUDGMENT DATED: 28/11/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/CRIMINAL APPEAL NO. 1199 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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========================================================== PRAKASHKUMAR KANJIBHAI KHOLVADIYA

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Versus

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STATE OF GUJARAT

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Appearance:

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MR HARSHAD K PATEL(2844) for the Appellant(s) No. 1 MR HARDIK MEHTA APP for the Opponent(s)/Respondent(s) No. 1 RULE SERVED for the Opponent(s)/Respondent(s) No. 2

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CORAM: HONOURABLE MS. JUSTICE GITA GOPI

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Date : 28/11/2022

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ORAL JUDGMENT

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The present appeal is filed for quashing and setting aside the order dated 09.05.2022 passed in

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Page 1 of 13

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R/CR.A/1199/2022 JUDGMENT DATED: 28/11/2022

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Criminal Case No.6575/2021 by the 3^rd Additional Judicial Magistrate, First Class, Palanpur, Banaskantha, whereby the same came to be dismissed for default.

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The rule was served, however, none appeared from the side of respondent no.2 – original accused.

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Mr. Harshad K.Patel, learned advocate for the appellant relying on the judgments of S.Anand Vs. Vasumathi Chandrasekar , reported in (2008) 4 SCC 67 and Harisinh Bhagwatsinh Sarvaiya Vs. State of Gujarat , reported in 2013 (3) GLR 2723 , submitted that the dismissal on the ground of default of complainant is an invalid order and the case should have been disposed of on the merits of the matter, when already evidence in the form of affidavit was produced on record vide Exhibit4 and the list of documents in support of the case was produced at Exhibit-3, and the complainant had also urged the Court to Exhibits those documents by filing application, Exhibit-5.

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R/CR.A/1199/2022 JUDGMENT DATED: 28/11/2022

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3.1 Advocate Mr. Patel further submitted that the Advocate had diligently pursued the matter since the case was instituted on 18.12.2021, and the learned trial Court after noting the verification of the matter had passed an order for issuance of summons to the accused on 28.12.2021 adjourning the matter for appearance of the accused on 25.01.2022. Mr. Patel submitted that on 07.03.2022, vide Exhibit-6, plea was recorded and the matter was adjourned to 05.04.2022, and the Rojnama of that day reflects that vide Exhibit-7, the Vakalatnama from the side of accused was produced and further statement of the accused was recorded, and thereafter the matter came to be posted on 02.05.2022. The Rojnama of that day records that accused was present, while complainant and advocate were shown as absent and matter remained for recording of evidence of the complainant and the matter was adjourned to 09.05.2022. Mr. Patel referring to the Rojnama of that day submitted that, it shows that Exhibit-8 is the exemption application of the accused, the Rojnama further, reflects that the

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R/CR.A/1199/2022 JUDGMENT DATED: 28/11/2022

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complainant and his advocate were absent, but the Court on that day dismissed the matter for default, in spite of the fact that accused was not present on that day and no permission was sought to cross-examine the complainant in accused’s absence.

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3.2 Mr. Patel submitted that adhering to the principle of natural justice, the evidence from the side of prosecution should always be recorded in presence of the accused, unless from the side of the accused, an exemption note is with the permission of recording the evidence in his absence. Mr. Patel submits that the learned trial Court had no reason to dismiss the matter, and further stated that the provisions of section 256 of Cr.P.C. should be exercised pragmatically and not in a technical manner, and further stated that if at all the Advocate fails to pursue the matter or attend the Court, the ultimate litigant should not be punished for any default of the Advocate.

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3.3 Mr. Patel further submitted that as per the

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R/CR.A/1199/2022 JUDGMENT DATED: 28/11/2022

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provisions of section 138 of the Negotiable Instruments Act, the evidence of the complainant is generally produced by way of affidavit and the documents are referred in the affidavit to curtail the time consumed for the trial. Thus, Mr. Patel submitted that it was not a case of no evidence on record, while the accused had not even asked for cross-examination of the complainant, and without any opportunity to the complainant to explain about his absence, the learned trial Court Judge fell in error in dismissing the matter for default, rather should have placed the matter for hearing on the side of the complainant to grant one more opportunity; thus, perusing the Rojnama and the judgments cited, Mr. Patel urged the Court to quash and set aside the order dated 09.05.2022 and restore the Criminal Case in the file of the concerned trial Court Judge.

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Speedy trial is a fundamental right of the accused; at the same time, every person has right to be heard on merits, is a principle to be adopted by way of

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R/CR.A/1199/2022 JUDGMENT DATED: 28/11/2022

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principle of natural justice; no case should be condemned unheard. Section 256 Cr.P.C. makes provisions that in case, on the complaint, summons is issued for the appearance of the accused and on the day appointed, or any day subsequent thereto to which the hearing may be adjourned, the complainant does not appear, the Magistrate shall have the authority to acquit the accused, unless for some reason he thinks it proper to adjourn the case to some other day; at the same time, sub-section (1) of section 256 Cr.P.C. is supported by a proviso which clarifies that when the complainant is represented by pleader or by the officer conducting the prosecution or when the Magistrate is of the opinion that the personal attendance of the complainant is not necessary, the Magistrate may dispense his attendance and prosecute with the case.

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4.1 Thus, section 256 of the Cr.P.C. do give an authority to the trial Court Judge to acquit the accused in case the complainant does not appear, but if the

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R/CR.A/1199/2022 JUDGMENT DATED: 28/11/2022

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complainant is represented by an Advocate on record, then it becomes a bounden duty of the Magistrate concerned to inquire about non-appearance of the complainant as witness and to provide an opportunity to explain the reasons for absence of the complainant on the day when the Magistrate finds to come to a conclusion for dismissal of the matter. Generally, when the complainant is represented by an Advocate, it would become adversally inferred that the Advocate is representing the matter and therefore it should not be considered as absence of complainant. As a matter of course, some times, when the Advocate finds that the accused is not present in the Court and when the accused is also represented by an Advocate, who moves an exemption application from the side of the accused; then a general perception is that on that ground itself, the matter would get adjourned.

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4.2 As per the proceedings, on 09.05.2022, when the learned Magistrate dismissed the matter for default,

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R/CR.A/1199/2022 JUDGMENT DATED: 28/11/2022

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Exhibit-8 was moved from the side of the accused for his exemption from attendance on that day. Thus, it could not be assumed that the Advocate of the complainant was not present in the Court, it may have been possible that the physical presence of the Advocate, on that day, may not have been in the Court, but the Advocate would have remained present in the Court premises and only on the information of non-appearance of the accused, he may possibly not attended the matter, the Court was required to grant an opportunity or should have called for the presence of the Advocate of the complainant in the Court before dismissing the matter on default.

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Even otherwise, the proceedings suggest that the matter was instituted on 18.12.2021, and along with the complaint the affidavit of the evidence and the documentary list were also produced with a prayer of exhibiting the documents. The learned trial Court Judge should have adopted the directions, which were given in the case of Indian Bank Association Vs. Union of

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R/CR.A/1199/2022 JUDGMENT DATED: 28/11/2022

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India , reported in (2014) 5 SCC 519 ; for matters filed under section 138 of the N.I. Act, the Hon’ble Apex Court has given directions, which are as under:

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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

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R/CR.A/1199/2022 JUDGMENT DATED: 28/11/2022

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application for compounding of offences at the first hearing of the case and, if 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 crossexamination as and when there is direction to this effect by the Court.”

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5.1

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According to the directions, as held in Indian

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R/CR.A/1199/2022 JUDGMENT DATED: 28/11/2022

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Bank Association (supra), after the issuance of summons, the Judicial Magistrate is required to adopt the pragmatic approach and may pass an appropriate order at the earliest by indicating in the summons, if accused make an application for compounding of offence at the first hearing of the case, the Court may pass appropriate orders at the earliest, the Courts shall direct the accused to ensure his appearance during the trial and take notice under section 251 of Cr.P.C. to enable him to enter his plea of defence and fix case for defence evidence, unless the application is made by the accused under section 145(2) of the N.I. Act for recalling witness for crossexamination.

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5.2 It appears that in this case, the trial Court has failed to adopt the directions, which have been given by the Hon’ble Apex Court in the referred case. The rojnama suggests that no application was moved by the accused for recalling the complainant for cross-examination. The time limit, which has been laid down in the Indian Bank

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R/CR.A/1199/2022 JUDGMENT DATED: 28/11/2022

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Association Vs. Union of India (supra), is of three months to the discretion of the trial Court Judge. In the present case, when there was no application from the side of the accused to recall the complainant, the learned trial Court Judge rather should have passed the judgment on the affidavit and the evidence produced along with the complaint. It appears from the record that the trial Court Judge has erroneously dismissed the matter for default, while it was not at all necessary for the complainant to have remained present in the Court, as there was no application moved, as the record does not suggests of any application moved under section 145 (2) of the N.I. Act.

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5.3 The judgment so relied upon in the order appears to be misplaced and is on erroneous interpretation, as the proceedings itself suggests that the provisions of Section 145(2) of the N.I. Act has not been followed, and the Court by its on fault has dismissed the matter as default, where the proceedings suggests that plea was recorded of the accused, and when accused does

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not appear for further proceedings then after granting reasonable opportunity the matter should have decided on merits in accordance with law.

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Thus, in view of the reasons given above, the appeal is allowed. The order dated 09.05.2022 passed in Criminal Case No.6575/2021 by the 3^rd Additional Judicial Magistrate, First Class, Palanpur, Banaskantha, is quashed and set aside. The Criminal Appeal No.6575/2021 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. Record & Proceedings, if any, be sent back to the concerned Court.

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(GITA GOPI,J)

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Pankaj

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Prakashkumar Kanjibhai Kholvadiya v. State of Gujarat

Case brief

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Prakashkumar Kanjibhai Kholvadiya v. State of Gujarat

Case brief

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