BRIJESHKUMAR KIRITKUMAR MEHTA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) THE present Criminal Appeal is filed by the Appellant/Original Complainant under Section 378(4) of the Code of Criminal Procedure, 1973 assailing the impugned order passed by the learned Principal Civil Judge and Judicial Magistrate First Class, Songadh below Exhibit -1 in Criminal Case No. 3935 of 2013 dated 21.8.2013 dismissing the complaint of the complainant for non -prosecution.

(2.) THOUGH the notice has been served, no one has remained present for Respondent No. 2 even though it was adjourned for couple of occasions.

(3.) THE facts of the case briefly summarized that the complaint being Criminal Case No. 3935 of 2013 was filed by the complainant for the offence under Section 138 read with Section 142 of the of the Negotiable Instruments Act. Learned Advocate Shri Gandhi referred to the Rojkam and submitted that earlier it was before the court of Vyara and later on it was transferred to the concerned court at Songadh. The notice was issued by the court at Songadh to the parties and thereafter the matter was placed on board. Learned Advocate Shri Gandhi submitted that the exercise of power under Section 256 is not justified in the background of the facts. He referred to the facts and submitted that the appellant could not remain present on 21.8.2013 due to the death of the partner and it was conveyed to the court. He submitted that the rojkam would reflect that there is no lethargy or negligence in appearance. Therefore, learned Advocate Shri Gandhi submitted that the court below has failed to appreciate that for the genuine reason beyond the control if the party or the Advocate has not remained present, would not justify the exercise of such powers. He therefore submitted referring to the judgment of the High Court reported in : 2013 (3) GLR 2723 -Harisinh Bhagwatsinh Sarvaiya v. State of Gujarat & Anr. and pointedly referred to the observations.