HARISHBHAI CHUNIBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This appeal is filed at the instance of the original complainant challenging the judgment and order of acquittal dtd. 9/9/2017 passed by the learned 7th Judicial Magistrate First Class, Ahmedabad (Rural), Mirzapur in Criminal Case No.2079 of 2014. By the said judgment and order, the learned Magistrate has dismissed the complaint for non prosecution by passing order below Exh.1 in exercise of powers conferred under Sec. 256 of the Code of Criminal Procedure thereby acquitting the respondent - original accused from the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881.

(2.) This appeal was filed along with leave to appeal under Sec. 378(4) of the Code of Criminal Procedure. This Court by order dtd. 9/8/2019 passed in Criminal Miscellaneous Application No.15064 of 2018 had granted leave to appeal. The appeal was notified for admission hearing. This Court by order dtd. 24/9/2019 upon hearing the learned advocate for the appellant had issued notice for final disposal. The order reads as under:

(3.) Mr.Singh, learned advocate has invited attention of this Court to the findings and the reasons recorded by the trial Court while passing the impugned order below Exh.1. He has submitted that the learned Magistrate ought not to have proceeded to pass the order of dismissal for non prosecution since the matter was notified in Lok Adalat. He further submitted that substantial injustice has been caused to the appellant inasmuch as the order has resulted into the acquittal of the respondent no.2- original accused without any decision on merits. He further submitted that the matter was pending at the stage of service of summons and considering the fact that the matter was placed before the Lok Adalat, the complainant was under the bonafide belief that his presence may not be required. He further submitted that the whole object of placing the matter in Lok Adalat is to amicably settle the matters by pursuing the parties, whereas in the given facts the learned Magistrate has proceeded to pass the order of dismissal for non prosecution, which laid down a bad precedent. He, therefore, urged this Court to remand the matter back to the learned Magistrate to decide the complaint on merits. While explaining the absence of the complainant on previous occasions as noticed by the learned Magistrate, Mr. Singh submitted that the present appellant frequently travels out of India and therefore, it was difficult for the appellant to remain in touch with the Advocate and to pursue the proceedings diligently. He was of the belief that he had engaged a lawyer to represent his case and as and when the presence was required, he would appear on his behalf. In absence of instructions, he was not aware of the proceedings. He, therefore, submitted that the appellant may not suffer for the inaction on the part of the learned advocate.