The importance of ensuring natural justice and giving both parties an opportunity to present their evidence, even in cases of non-appearance, and the need to avoid technical dismissals.

JUDGMENT :

Order in R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 10567 of 2023

As this Court deems it fit to decide the case on merits, the formal leave seeking leave to prefer an appeal is granted.

Application seeking leave to prefer an appeal stands disposed of.

Order in R/CRIMINAL APPEAL NO. 1397 of 2023

1. Though ‘Rule’ is served as per Report filed by the Registry on 18.12.2023, no one has appeared either through an advocate or through the person.

2. This appeal is filed challenging the judgment and order of acquittal passed by learned 3rd Additional Judicial Magistrate First Class, Palanpur dated 30th November, 2022 in Criminal Case No.4488 of 2018.

3. It is the case of the complainant that complainant is doing the business in the name and style of Sarvottam Petroleum and selling the diesel and petrol under the agency of Indian Oil Corporation. The Respondent-accused is the contractor and doing the business of transport of Banas Dairy. As for refilling of the milk and for transporting the same, tankers were used and diesel was filled up on credit basis from the petrol pump of the complainant. There was a due of Rs.1,92,695/- as on 10th March, 2018. For payment of the aforesaid due, the cheque bearing Cheque No.178509 was issued in favour of the complainant and on depositing the same, it was returned with the endorsement of ‘insufficient fund’. After following the procedure prescribed under the Negotiable Instruments Act, the complaint came to be filed being a Criminal Case No.4488 of 2018. After recording verification of the complainant, summons came to be issued vide an order dated 4.2.2019 and thereafter from time to time, the matter was adjourned because of non-appearance of the respondent-accused. During this period, the bailable warrant and Non Bailable Warrant was also issued, which was in existence upto 27th August, 2022. On that day, the respondent-accused appeared and filed an application for cancellation of warrant below Exh.8, which was allowed and case was kept for the further statement of the accused. It is further case of the complainant that thereafter for 4 (four) consecutive dates, the complainant was not remained present because of miscommunication between the learned advocate and the complainant. Therefore, the impugned order was passed on 30th November, 2022 dismissing the complaint for non prosecution by exercising the power under Section 256 of the Code of Criminal Procedure, which is impugned before this Court.

4. Heard learned advocate, Mr. Ankit Y. Bachani, for the appellant-complainant and as observed earlier, no one appeared on behalf of respondent-accused.

5. Learned advocate, Mr.Bachani, for the appellant submits that though matter was filed in the year 2018, for 4 (four) years, respondent-accused did not appear and therefore, the matter was adjourned for the execution of the bailable/ Non Bailable Warrant. For the first time, respondent-accused appeared on 27th August, 2022 and thereafter, the case was kept on 1st August, 2022. Learned advocate submits that as per record, the plea of the respondent-accused was recorded on 1.8.2022 and matter was kept on 10th August, 2022. on that day, the complainant and his learned advocate was absent therefore, case was adjourned on 18.10.2022. Therefore, on 18th October, 2022, this matter was kept for the evidence of the complainant and on that day, learned advocate for the complainant was present. However, complainant was absent and due to absence of the complainant, the matter was kept on 22nd November, 2022. On that day also, the complainant was absent and from the record, it transpires that accused also not remained present and therefore, the matter was kept on 30th November, 2022. On that day also, the complainant or the accused nor their respective advocates were present, therefore, the complaint came to be dismissed for non prosecution. Learned advocate, Mr.Bachani, submits that for 4 (four) years, the trial remained pending for execution of the wa