Allowed

Hardik Manharlal Kotecha v. State of Gujarat

Gujarat HC13 Dec 2022CR.A/811/2022

Case brief

AI extract

What is this about?

High Court of Gujarat quashed orders dismissing three cheque bounce complaints. held that since the complainant was represented by a pleader, the magistrate could have dispensed with personal attendance or adjourned, thereby preventing implicit acquittal. Appeals restored.

What did the court decide?

Impugned orders quashed; criminal cases restored to file from stage of cross-examination; appeals disposed of.

Hardik Manharlal Kotecha Vs State of Gujarat — Cheque Dishonour | Gujarat HC (2022)

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R/CR.A/789/2022 ORDER DATED: 13/12/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/CRIMINAL APPEAL NO. 789 of 2022 With R/CRIMINAL APPEAL NO. 811 of 2022 With R/CRIMINAL APPEAL NO. 815 of 2022

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HARDIK MANHARLAL KOTECHA

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Versus STATE OF GUJARAT

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Appearance:

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MR BHAVIK R SAMANI(8339) for the Appellant(s) No. 1 MR PRANAV TRIVEDI, APP for the Opponent(s)/Respondent(s) No. 1 MR SUDHANSHU A JHA(8345) for the Opponent(s)/Respondent(s) No. 2

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CORAM: HONOURABLE MS. JUSTICE GITA GOPI

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Date : 13/12/2022

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COMMON ORAL ORDER

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1.Mr. Samani, learned advocate for the
appellant submits that the present appeals
have been filed against the order passed by

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the learned 11th Additional Chief Judicial
Magistrate, Rajkot on 12.3.2022 dismissing

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the complaints being Criminal Cases
no.2208/17, 2207/17 and 2206/17 respectively

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under Section 256 of the Code of Criminal
Procedure, 1973 (for short ‘Cr.P.C.’) in a
Special Sitting which was held in the Lok

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Page 1 of 12

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R/CR.A/789/2022 ORDER DATED: 13/12/2022

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Adalat and submits that in the Special

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Sitting, the matter was placed and the
advocate and the complainant were found
absent and therefore, the learned Trial
Court Judge found that the complainant was
not interested in proceeding with the
matter. Mr. Samani submits that because of
the internal bar dispute, the lawyer on
record was debarred from practice for a
period of one year and this fact was known
to the Court concerned. Apart from that, Mr.

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Samani submits that about 4 matters were
instituted by the present appellant against

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the accused and in Criminal Case no.1387 of
2017, the respondent was convicted, which
itself suggests on record the vigilance and
the interest of the complainant to pursue
the matter. Mr. Samani submits that the
learned Trial Court Judge was not right in
observing that the complainant was remaining

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Page 2 of 12

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R/CR.A/789/2022 ORDER DATED: 13/12/2022

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absent during the trial proceedings and
Section 256 of the Cr.P.C. makes a provision
to even grant exemption to the complainant
when he is represented by a lawyer on
record.

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2.While countering the same, Mr. Sudhanshu
Jha, learned advocate for the respondent
no.2 states that the learned Trial Court
Judge has considered the conduct of the
complainant to dismiss the matters and thus,
submits that the order under Section 256 of
the Cr.P.C. would necessary follow with
acquittal of the accused and hence, submits
that there is no ground to interfere in the
matters.

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3. In Associated Cement Co. Ltd. Vs. Keshvanand , reported in (1998) 1 SCC 687 , the Hon’ble Apex Court while referring to the provisions of section 256 of Cr.P.C. in

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Page 3 of 12

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R/CR.A/789/2022 ORDER DATED: 13/12/2022

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context of the complaint filed under section
138 of the N.I. Act, has made observations

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as under:

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“15. Section 256 of the Code of
Criminal Procedure, 1973( for
short 'the new Code') is the
corresponding provision to Section
247 of the old Code. The main body
of both provisions is identically
worded, but there is a slight
difference between the provisos
under the two sections. The
proviso tosection 256 of the new
code is reproduced here:

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“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."

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16. What was the purpose of
including a provision like Section
247 in the old code (or section
256 in the new Code). It affords
some deterrence against dilatory
tactics on the part of a
complainant who set the law in
motion through his complaint. An
accused who is per force to attend
the court on all posting days can

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Page 4 of 12

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R/CR.A/789/2022 ORDER DATED: 13/12/2022

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be put to much harassment by a
complaint. An accused who is per
force to attend the court on all
posting days can be put to much
harassment by a complainant if he
does not turn up to the court on
occasions when his presence is
necessary. The Section, therefore,
affords a protection to an accused
against such tactics of the
complainant. But that does not
mean if the complainant is absent,
court has a duty to acquit the
accused in invitum.

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17. Reading the Section in its
entirety would reveal that two
constraints are imposed on the
court for exercising the power
under the Section. First is, if
the court thinks that in a
situation it is proper to adjourn
the hearing then the magistrate
shall not acquit the accused.
Second is, when the magistrate
considers that personal attendance
of the complainant is not
necessary on that day the
magistrate has the power to
dispense with his attendance and
proceed with the case. When the
court notices that the complainant
is absent on a particular day the
court must consider whether
personal attendance of the
complainant is essential on that
day for progress of the case and
also whether the situation does
not justify the case being
adjoined to another date due to

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Page 5 of 12

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R/CR.A/789/2022 ORDER DATED: 13/12/2022

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any other reason. If the situation
does not justify the case being
adjourned the court is free to
dismiss the complaint and acquit
the accused. But if the presence
of the complainant on that day was
quite unnecessary then resorting
to the step of axing down the
complaint may not be a proper
exercise of the power envisaged in
the section. The discretion must
therefore be exercised judicially
and fairly without impairing the
cause of administration of
criminal justice.”

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4.This Court in case of State v. Keshavram,

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reported in 1977 GLR 524, held as under:-

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"The power under Sec. 256 of the
Criminal Procedure Code 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. The proviso
to Sec. 256 further lays down that
when the complainant is
represented by a Pleader or where
the Magistrate is of the opinion
that the personal attendance of
the complainant is not necessary,
the Magistrate may dispense with
his attendance and proceed with
the case. In the instant case, the
situation on the day in question
squarely fall within the proviso
and still the learned Magistrate

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Page 6 of 12

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R/CR.A/789/2022 ORDER DATED: 13/12/2022

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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 the Magistrate."

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5. Similarly, in the the case of Sureshchandra

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Chandulal Patni V. Natwarlal Keshavlal Patni,
reported in 1992 (1) GLR 626, this Court held

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that:

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"In the instant case, the learned
Magistrate has not recorded any
reason about his thinking it
proper to adjourn the hearing of
the case to some other date. It
appears that he has ignored the
proviso to Sec. 256 of the Code of
Criminal Procedure. The power
under Sec. 256 of the Code of
Criminal Procedure has been
conferred on the Magistrate
obviously in the interest of
justice, with a view to seeing
that the accused is not subjected
to any undue harassment. It is
clear from the proviso to Sec. 256
of the Code of Criminal Procedure
that when the complainant is
represented by a pleader or where
the Magistrate is of the opinion
that the personal attendance of
the complainant is not necessary,
the Magistrate may dispense with
the personal attendance of the
complainant and proceed with the

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Page 7 of 12

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R/CR.A/789/2022 ORDER DATED: 13/12/2022

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case. In the instant case, the
learned Magistrate does not appear
to have applied his mind in
dispensing with the personal
attendance of the complainant and
to proceed with the case or to
adjourn the case to some other
date as requested in the
application submitted by the
Advocate for the complainant. In
the present case, the situation as
on March 5, 1984 squarely falls
within the aforesaid proviso and
still the learned Magistrate acted
under sub-sec. (1) of Sec. 256 of
the Code of Criminal Procedure
acquitting the accused. It is
therefore, clear that the learned
Magistrate has ignored the
provision contained in the proviso
to Sec. 256 of the Code of
Criminal Procedure."

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6. As per the record, the matters stood

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transferred to the place of jurisdiction,
where the complainant’s Bank is found
situated which in this case is Dena Bank
Branch at Rajkot. Hence, a complaint was
returned to the complainant by the learned
JMFC, Nashik and considering the matter,
inquiry under Section 202 was ordered and
process for summons was ordered to be

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Page 8 of 12

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R/CR.A/789/2022 ORDER DATED: 13/12/2022

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issued. In a case under Section 138 of the

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Negotiable Instruments Act, 1881, to prove

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the facts, the complainant is required to
place on record the affidavit of the

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examination-in-chief along with the
documents relied upon. The complainant had
appointed an advocate to represent him, one

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matter against the respondent was
successfully conducted, which led to
conviction by the same complainant and the
advocate. In the case of this nature, on
every date so fixed for the proceedings, the
complainant’s presence is not necessary,

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more so, where he has engaged an advocate.
Here in this case, the matters were placed
in Special Sitting, which was held in the
Lok Adalat. Unfortunately, the learned Trial
Court Judge, while finding the absence of

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the advocate on that day and even of the
complainant, deemed fit to dismiss the

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Page 9 of 12

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R/CR.A/789/2022 ORDER DATED: 13/12/2022

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matters for default. The power under Section
256 of the Cr.P.C. has been conferred on the
Magistrate obviously for the ends of justice
and with a view to see that the accused
persons are not subjected to any undue
harassment, but the proviso to Section 256
of the Cr.P.C. lays down that where the
complainant is represented by a pleader,
where the Magistrate is of the opinion that
the personal attendance of the complainant
is not necessary, the Magistrate may
dispense with the attendance and proceed
with the case. It is unfortunate to note
that the learned Trial Court Judge took a
very easy and convenient way of rejecting
the matters rather than conducting the
matters on merits. Mr. Samani states that
the examination-in-chief was produced on
record supported with the documents to be
relied upon and in all the matters, even an

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Page 10 of 12

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R/CR.A/789/2022 ORDER DATED: 13/12/2022

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application was moved from the side of the
complainant drawing attention of the Court

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that the accused was not remaining present

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for cross-examination, though the

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complainant was before the Court which was

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kept for hearing and the learned Judge had
even passed an order for exhibiting the
documents on record. The learned Trial Court
Judge rather than dismissing the matters on
the very date, if at all had found that the
presence of the complainant was necessary or

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had come to the conclusion that the matters
were getting derailed by the complainant,

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should have closed the stage of evidence of
the complainant rather than dismissing the
matters and acquitting the accused. The
order impugned is inherently bad in law and
is nothing but a mere disposal than the
decision on merits.

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Page 11 of 12

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R/CR.A/789/2022 ORDER DATED: 13/12/2022

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7. Thus, for the above reasons, the impugned orders dated 12.3.2022 passed by the learned 11^th Additional Chief Judicial Magistrate, Rajkot in Criminal Cases no.2208/17, 2207/17 and 2206/17 respectively are hereby quashed and set aside. The said Criminal Cases are restored to the original file with a direction that the matters be conducted in accordance with law from the stage of crossexamination of the complainant. Accordingly, the present appeals stand disposed of.

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(GITA GOPI,J)

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Maulik

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Page 12 of 12

Hardik Manharlal Kotecha v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Hardik Manharlal Kotecha v. State of Gujarat

Case brief

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