BIREN CHANDULAL MEHTA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PRESENT Criminal Appeal has been preferred by the appellant original complainant to quash and set aside the impugned judgment and order of acquittal dated 27.2.2012 passed by the learned Additional Chief Judicial Magistrate, Rajkot in Criminal Case No. 3298 of 2007 by which, the learned Chief Judicial Magistrate has acquitted respondent no.2 herein original accused for the offence under Section 138 of the Negotiable Instruments Act in absence of the complainant and in exercise of powers under Section 256 of the Code of Criminal Procedure.

(2.) THAT the appellant herein original complainant has instituted/ filed Criminal Case No.3298 of 2007 against respondent no.2 original accused for the offence under Section 138 of the Negotiable Instruments Act. It appears that the learned Chief Judicial Magistrate directed to issue summons/ process against the accused by order dated 27.4.2007. It also appears that plea of the accused came to be recorded by the learned Magistrate on 16 th March 2009 and respondent no.2 hereinoriginal accused pleaded not guilty and therefore, he came to be tried. It also appears that thereafter the examination in chief on affidavit was produced by the complainant on 18.5.2009. Thereafter, the accused did not appear before the learned Magistrate, however submitted the application for exemption, which came to be granted. However thereafter, he did not appear before the learned Magistrate and therefore, the application was submitted by the complainant on 14.12.2009 requesting to pass an order to close the right of accused to cross examine the complainant. The said application was fixed for hearing. That thereafter, also the accused did not remain present and therefore, an application Exh.19 was submitted by the complainant requesting to issue warrant against the accused. It appears that thereafter the complaint was on board before the learned Magistrate on 27.2.2012. However, neither the complainant nor his advocate remained present and therefore, recording that the case is very old and as the complainant is not remaining present and despite the notice he is not remaining present it appears that he is not interested to proceed further with the case and therefore, in absence of complainant, the learned Magistrate by impugned order has acquitted the accused in exercise of powers under Section 256 of the Code of Criminal Procedure. 2.1. Feeling aggrieved and dissatisfied with the impugned order passed by the learned Magistrate, Rajkot dated 27.2.2012 passed in Criminal Case No. 3298 of 2007, the appellant herein original complainant has preferred the present appeal.

(3.) PRESENT Appeal is opposed by Shri Jasani, learned advocate for the original accused. He has submitted that as such no cause has been shown why the complainant and / or his advocate did not remain present before the learned Additional Chief Judicial Magistrate on the date on which the learned Magistrate passed the impugned order. It is therefore, submitted that when neither complainant nor his advocate remained present and no cause has been shown why the complainant could not remain present, no illegality has been committed by the learned Magistrate in dismissing the complaint and acquitting the accused while exercising the powers under Section 256 of the Code of Criminal Procedure. 4.1. Shri Jasani, learned advocate for the original accused has heavily relied upon the decision of the Hon'ble Supreme Court in the case of S. Rama Krishna vs. S. Rami Reddy (D) by his LR and Others reported in (2008) 5 SCC 535 in support of his prayer to dismiss the present appeal.