NALBANDH AIYUB ISMAIL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is filed being aggrieved and dissatisfied with the impugned judgment and order dtd. 29/11/2017 passed by the learned 2nd Additional Civil Judge and Judicial Magistrate, First Class, Bharuch, whereby, the learned Magistrate has passed the order below Exhibit-1 disposing of the complaint in Criminal Case No.1453/2014 as per Sec. 256(1) of Code of Criminal Procedure and discharging the accused because of non appearance of the appellant in the proceedings under Secton 256 of the Code .

(2.) Heard learned advocate Mr. Vaibhav N. Sheth for the appellant. Notice is served upon the respondent who is present in person before this Court.

(3.) It is submitted by the learned advocate Mr. Vaibhav N. Sheth that the order to complainant under Sec. 256 of the Criminal Procedure Code due to non appearance of the appellant in the proceedings and discharging the respondent No.2 is against law and evidence. He also submitted that the trial Court gravely erred in misreading and in misconstruing the documentary evidences on record is present. It is submitted that the trial Court has not considered the fact that the complainant has not present before the trial Court in the year 2014 whereby the respondent No.2 was served with the notice of summon on earlier occasions when the complaint was filed, and thereafter, again non bailable warrant was issued by the trial Court vide its order dtd. 25/7/2015 below application Exhibit-33 and again on 31/12/2015 below application - Exhibit-38 upon the respondent No.2 for making his presence available which was served. It is also submitted that statement of the respondent No.2 was also recorded and arguments are also concluded and the appellant had remained present on various occasions, the trial Court also have served the non bailable warrant against the present respondent. It is also submitted that the matter is kept for judgment for long time by the trial Court upon conclusion of the arguments. It further proceeded to judgment in absence of respondent since the evidence was already recorded. It is also submitted that his advocate or the Court is vigilant no reasons whatsoever and the appellant could not informed the matter has dismissed in his absence as he always personally present before the Court only as he could not serve the Court issued notice upon the complainant which was served the appellant remained absent only on the ground that his absence entire complaint of respondent No.2 under Sec. 256 is dismissed.