R/CR.A/1021/2018 JUDGMENT

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

R/CRIMINAL APPEAL NO. 1021 of 2018

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR.JUSTICE R.P.DHOLARIA

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1 Whether Reporters of Local Papers may be allowed to

see the judgment ?

2 To be referred to the Reporter or not ?

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

judgment ?

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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GULSHAN PRINTS PRIVATE LIMITED THROUGH GULSHAN

BAHADURCHAND CHOPRA

Versus

AKHAND FEB THROUGH MANISH JALAMCHAND BAMBORI

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Appearance:

MR HARDIK A DAVE(3764) for the PETITIONER(s) No. 1

MS HB PUNANI, APP (2) for the RESPONDENT(s) No. 3

RULE SERVED(64) for the RESPONDENT(s) No. 1,2

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CORAM: HONOURABLE MR.JUSTICE R.P.DHOLARIA

Date : 12/12/2018

ORAL JUDGMENT

1.

The present appeal is filed against the

judgment and order dated 13.6.2018 of dismissal

of complaint lodged under section 138 of the

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R/CR.A/1021/2018 JUDGMENT

Negotiable Instruments Act 1881 for the default

on the part of the complainant in not conducting

the matter.

2.

Though served, none has chosen to remain

present for the private respondents.

3.

This Court has heard Mr.Hardik Dave,

learned advocate for the appellant and Ms.Punani,

learned APP for the respondent State.

4.

Perused the impugned order passed by

learned trial Court. The impugned order runs in

single line i.e. upto 17.56 hours, none has

remained present for the complainant and

therefore, the complaint is dismissed under

section 256 of the Code of Criminal Procedure.

Further, it reveals from the Record and

Proceedings that on the aforesaid date, when the

complaint came to be listed, the application came

to be tendered by learned advocate for the

complainant inter alia urging that as the

complainant’s father was undergoing treatment and

therefore, the complainant was not able to attend

the Court. Though the detailed order was passed

below such adjournment application at Exh.38,

thereafter, it appears that in the evening hours,

the aforesaid order of dismissal came to be

passed below Exh.1 by learned Magistrate. Be that

as it may. It seems that since the matter remains

pending for about five years, in view of the

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R/CR.A/1021/2018 JUDGMENT

direction of this Court to deal with old cases on

priority basis, learned Magistrate seems to have

taken the aforesaid harsh step of dismissal of

complaint for default. The record and proceedings

also indicate that sufficient opportunity was

granted to the complainant. In that view of the

matter, since on the date of passing of the

impugned order, father of the complainant was

undergoing treatment and he was engaged with such

work and therefore, he could not remain present

before the learned trial Court. The said fact

could have been appreciated by learned

Magistrate.

5.

In the larger interest, since the

impugned judgment is not rendered on merit, this

Court deems it appropriate to quash and set aside

the impugned judgment and order with a clear

direction to resume the trial from the stage

where the case was lying upon imposition of

litigation cost of Rs.2500/- which shall be

payable to the concerned District Legal Service