BHARAT HIRALAL PARIKH Vs. HITESHBHAI BHIKHABHAI GAJERA

JUDGEMENT

(1.) Rule has been served. Prayer is made to condone the delay of 340 days in filing the leave to appeal against the order of acquittal dtd. 31/8/2019 passed by the learned Additional Chief Judicial Magistrate, Ahmedabad (Rural) below Exh.1 in Criminal Case no.7061/2015.

(2.) Mr. Champavat, learned advocate for the applicant submits that the order was passed dismissing the matter for default under Sec. 256 of the Code of Criminal Procedure, 1973 and thereby, the accused came to be acquitted and thus, submits that as per the provisions of law, the accused would get acquitted and therefore, against that order of acquittal, the appeal has to be preferred. Mr. Champavat states that the complainant is aged about 66 years and a Gynecologist Doctor by profession who had filed a complaint under Sec. 138 of the Negotiable Instruments Act, 1881 after issuance of legal notice and that since the money was not paid, the present applicant filed a complaint being Criminal Case no.7061 of 2015. The summons was issued which was made returnable on 20/11/2015, the accused failed to remain present, hence, arrest warrant was issued against the accused.

(3.) Mr. Champavat submits that the applicant being a Doctor by profession and as he had engaged a lawyer on record, he could not remain present before the Court as the matter continued against the accused on service of warrant. Unfortunately, on 31/8/2019, the matter came to be dismissed for default. Mr. Champavat submits that the applicant was under the impression that when the accused appears, the matter would be conducted and since he had no response from the advocate, he could not gather information of dismissal and on contacting the lawyer, Criminal Revision Application no.113 of 2021 was filed before the learned Sessions Court, Ahmedabad (Rural) which came to be dismissed for want of jurisdiction and hence, Mr. Champavat submits that as the applicant was before a wrong forum, there has been a delay of 340 days and further submits that the order passed by the learned Trial Court Judge did not specify any order of acquittal and therefore, inadvertently, under illegal advise, was pursuing his matter before the Sessions Court.