Back
2024 Supreme(Online)(GUJ) 9510
HIGH COURT OF GUJARAT
M. K. THAKKER, J
BACHUMIYA ALAUDIN MALEK – Appellant
Versus
STATE OF GUJARAT – Respondent
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1371 of 2024
For the Appellants/Petitioners: MR PIYUSH B TRIVEDI
For the Respondents: MR VIVEK V BHAMARE, MR VN BHAMARE, MR.JAY MEHTA, APP
The court emphasized that under Section 256 of the Cr.P.C., judicial discretion must be exercised to consider valid reasons for a complainant's absence before dismissing a case.
Headnote:(A) Code of Criminal Procedure, 1973 - Section 256 - Acquittal due to non-appearance of complainant - Complainant's absence due to age-related ailments and non-communication by counsel - Court emphasized the need for judicial discretion in adjournments and the necessity of complainant's presence - Appeal allowed, original complaint restored with costs imposed. (Paras 8, 10, 11)
Facts of the case:
The complainant, an agriculturist, alleged that he was owed Rs.6,10,000/- by the respondent-accused, which included a dishonoured cheque of Rs.5,50,000/-. The trial court acquitted the accused due to the complainant's absence during critical hearings.
Findings of Court:
The court found that the trial court's acquittal was unjust due to the complainant's valid reasons for absence, thus restoring the case for a fresh hearing.
Issues: The primary issue was whether the trial court erred in dismissing the complaint due to the complainant's absence.
Ratio Decidendi: The court held that the trial court should have exercised its discretion judiciously under Section 256, emphasizing the importance of the complainant's presence while also considering valid reasons for absence.
Result: Appeal allowed; acquittal quashed and case restored.
| Table of Content |
|---|
| 1. court's analysis on the impact of complainant's absence. (Para 6 , 7 , 10) |
| 2. interpretation of section 256 of cr.p.c regarding complainant's non-appearance. (Para 8 , 9) |
| 3. restoration of the case with conditions imposed. (Para 11 , 12) |
ORAL JUDGMENT
1. With the consent of both the parties, this matter is heard finally.
2. The present appeal is filed under section 378 of the Cr.P.C challenging the judgment and order of acquittal dated 31.01.2024 passed by the learned 4th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Anand in Criminal case No. 1867 of 2023 exercising the power under Section 256 of Cr.P.C. /a> acquitting the respondent-accused from the charges.
3. It is the case of the complainant that complainant is agriculturist and as the respondent-accused use to visit the hotel of the son of the complainant they came in contact and became friends. The respondent-accused demanded an amount of Rs.6,10,000/- on the ground that the son of the respondent-accused had applied for PR and for two months the bank balance is required to be shown which was lent by the complainant in the month of August 2022. on completion of two months, the amount was demanded back and at that time, the amount of Rs.60,000/- through Google Pay paid on the account of the grandson of the complainant by the son of the accused. For the remaining amount of Rs.5,50,000/- cheque was issued dated 21.01.2023 being no.738336 with an assurance that on depositing the said cheque in the bank it would be credited in the account of the complainant.
3.1. On depositing the same, it was dishonoured with an endorsement of ‘payment stopped by drawer’. Therefore, after following due procedure under the N.I.Act private complaint came to be filed before the learned trial court. On recording the verification, learned trial court has issued process to the respondent-accused on 16.03.2023 making it returnable on 15.04.2023. Respondent- accused appeared before the learned trial court on 12.06.2023 and his plea was recorded below Exh. 7 and the further statement was also recorded on the same day.
3.2. Thereafter, case was adjourned for the cross- examination of the complainant however, for five consecutive dates, the complainant did not remain present and therefore, learned trial court dismissed the complaint vide judgment and order dated 31.01.2024 which is subject matter of challenge before this Court.
4. Heard learned advocate Mr.Piyush Trivedi for the appellant-original complainant and learned advocate Mr.Vivek Bhamare for the respondent-accused.
4.1. Learned advocate Mr.Piyush Trivedi submits that the complainant is aged around 65 years and due to old age he is suffering from number of ailments and when he inquired the date from the concerned advocate, the advocate had not informed and therefore, complainant could not remain present before the learned trial court for cross-examination.
4.2. Learned advocate Mr.Piyush Trivedi submits that due to absence of the complainant, the learned trial court has dismissed the complaint in view of the time barred litigation and the complainant is left remediless. Learned advocate Mr.Piyush Trivedi submits that if this judgment and order of acquittal is quashed he would undertake to remain present before the learned trial court and would see that trial is concluded without any further delay.
4.3. In view of above submission, learned advocate prays to restore the criminal case to its original file and to remand it back to the learned trial court to decide it afresh.
5. As against the same, learned advocate Mr.Bhamare appearing for respondent no.2-original accused has submitted that on setting criminal law in motion, it is the duty of the complainant to see that the case is concluded without any delay.
5.1. Learned advocate Mr.Bhamare submits that on appearance of the accused on 12.06.2023 case was posted for cross-examination of the complainant and at that stage, presence of the complainant is must and th
