MAMTA DILIPBHAI RANA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Mr. Vedant Gaikwad, learned advocate for the appellant states that the appellant- original complainant of Criminal Case no.1564 of 2019 has challenged the judgment and order dtd. 27/6/2022 passed by the learned JMFC, Vadodara while dismissing the complaint under Sec. 256 of the Code of Criminal Procedure, 1973 and acquitting the accused. Mr. Gaikwad submits that the impugned order is bad in law and is against the directions of the Hon'ble Supreme Court passed in the case of Indian Bank Association Vs. Union of India, reported in (2014) 5 SCC 590 and further referring to an order below Exh.30, Mr. Gaikwad submits that the learned Trial Court Judge should not have passed any order under Sec. 256 of the Cr.P.C. since the complainant was represented by an advocate on record. Mr. Gaikwad submits that the matter was lastly listed on 26/5/2022 when the appellant and his advocate were present before the Court and an application was given for closing the right of the accused for cross- examination as accused was not present before the Court at the given time. Mr. Gaikwad submits that thereafter, the respondent no.2 appeared before the Court along with his advocate at 01:30 p.m. and thereafter, the learned Trial Court Judge, by an order, directed both the parties to remain present on 27/5/2022 at 03:00 p.m. for conducting the matter. Mr. Gaikwad submits that on 27/5/2022, the present appellant could not remain present, but a report was moved by the advocate showing the cause of non- appearance before the Court and the said reason, according to Mr. Gaikwad, is reflected in the order of the learned Trial Court Judge. Inspite of that, the learned Judge came to the conclusion that the appellant was negligent in conducting the case. He further states that as per the Rojnama, the examination-in-chief was produced at Exh.4, list of documents vide Exh.3 and an application under Sec. 143A of the N.I. Act was moved for directing the accused to pay the interim compensation and it was kept for hearing and on 19/10/2019, after hearing, the said application was reserved for orders and on 19/10/2019 as per the Rojnama, the order was passed. Mr. Gaikwad submits that the matter was adjourned owing to the Office Order of the District Court on account of pandemic Corona virus Covid-19 and then, on 8/2/2020, non-bailable warrant was issued against the accused and the proceedings from time to time continued on serving of non-bailable warrant to the accused. On 24/9/2021, the application to cancel the warrant was moved and vide Exh.21, the permanent exemption application was moved by the accused. Mr. Gaikwad states that on 27/9/2021, the documents were ordered to be exhibited from Exhs.22 to 25 and the matter was posted for cross-examination and for the execution of order below Exh.12. Mr. Gaikwad submits that the order below Exh.12 was not implemented by the accused and vide Exh.30, the complainant has moved the Court to close the right of the accused of cross- examination, but the learned Judge directed both the parties to proceed with the matter on 27/5/2022 at 15:00 hrs. with a further direction that in failure of any party/advocate remaining absent, appropriate order would be passed. Mr. Gaikwad submits that the impugned order reflects that the advocate of the complainant had moved the Court for an adjournment informing the Court that the complainant was on a religious procession and on that ground, asked for adjournment.

(2.) The record and proceedings, as submitted, shows that the matter was for the implementation of an order below Exh.12 which was passed under Sec. 143A of the N.I. Act. The accused was to pay the money as per the order. The complainant had moved Exh.30 requesting the Court to close the stage of cross-examination of the accused. The learned Judge, while passing the order on 26/5/2022 below Exh.30, had observed that the complainant and his advocate were present in the morning and thereafter, at 13:30 hrs., the accused and his counsel remained present, but at that time, the complainant or his counsel were not before the Court. Hence, the learned Judge directed the parties to proceed with the matter on 27/5/2022. The learned Judge, on the date of rejecting the complaint on 27/6/2022, ought to have referred to the proceedings of the matter. The case was on execution of the order below Exh.12. The complainant had also urged the Court to close the stage of cross-examination and on the very day when the matter was dismissed for default, the applicant's lawyer was present before the Court.

(3.) Mr. Gaikwad referring to the judgment of this Court in the case of Jain Enamel Works Vs. State of Gujarat, reported in 2018 (0) AIJEL-HC 239029, submits that exercise of powers under Sec. 256 of the Code of Criminal Procedure, 1973 dismissing the matter for want of prosecution is considered as travesty of justice.