Gujarat High Court Case Information System
Print
CR.A/2403/2009 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 2403 of 2009
=========================================================
BHAVANI
TEXTILES MILLS, THRO' PROPRIETOR MAGRAJBHAI GENSINH- - Appellant(s)
Versus
STATE
OF GUJARAT & 2 - Opponent(s)
=========================================================
Appearance
:
MR
RJ GOSWAMI for
Appellant(s) : 1,
MR MG NANAVATI, LD. ADDL. PUBLIC PROSECUTOR for
Opponent(s) : 1,
None for Opponent(s) : 2 -
3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE Z.K.SAIYED
Date
: 18/01/2010
ORAL
ORDER
Original
complainant of the Criminal Case No.2805 of 2008 has filed this
acquittal appeal against the judgment and order dated 01st
August 2009 passed by the learned Metropolitan Magistrate Negotiable
Instruments Act, Court No.4, Ahmedabad.
In
this case, heard learned counsel for the appellant Mr. R.J. Goswami.
He has vehemently argued that the learned Judge has not followed
the provisions of Section 256 of the Criminal Procedure Code, 1973.
He has also read the papers which are called for and vehemently
argued that the accused has already appeared before the Trial Court
and order of the learned Metropolitan Magistrate Court is not
proper, legal and it is required to be quashed and set aside. I
have perused the order and papers produced before me. In this
matter leave to appeal is granted and Record and Proceedings was
called for before this Court and was received by this Court. A bare
perusal of the papers itself reveals that the complaint was filed on
20th October 2003 and deposition of the complainant was
recorded on 20th October 2003 itself and vide order dated
22nd October 2003, the complaint was registered and
process was ordered to be issued on the same day. It appears from
the perusal of the papers that in the year 2003 the complaint was
filed against the accused-respondents and after six years, vide
order dated 01st August 2009, on the ground of default of
appearance by the complainant, the said complaint was dismissed by
the learned Metropolitan Magistrate Court No.4. It is observed by
the learned Trial Court that the matter is very old and even for
serving the summons or warrant, the complainant has never bothered.
The learned Magistrate has also observed that the complainant has
never filed any application to issue any summons or warrant. Even
he has not paid process fees. The complainant was also served
through notice, which was served to the complainant, which is
produced at Exh.2, but upto the end of the day, the complainant or
his learned counsel have not bothered to appear before the Court.
The learned Magistrate after considering the ratio laid down and
observations made in the decisions viz. (i) in the case of Shalimar
Paints Limited Vs Murlidhar Hardware Mart reported in 2008(1) DCR 46
and (ii) Vinaykumar Vs State of Uttar Pradesh reported in 2008(1)
DCR 19, because of the negligency on the part of the complainant,
dismissed the said complaint of the complainant vide order dated
01st August 2009.
I
have perused the reasons given by the learned Trial Court and also
perused the provision of Section 256 of the Criminal Procedure Code,
1973, which reads as under :
256.
Non-appearance or death of complainant : (1) If the summons has
been issued on complaint, and on the day appointed for the appearance
of the accused, or any day subsequent thereto which the hearing may
be adjourned, the complainant does not appear, the Magistrate shall,
notwithstanding anything hereinbefore contained, acquit the accused,
unless for some reason he thinks it proper to adjourn the hearing of
the case to some other day :
Provided
that where the complainant is represented by a pleader or by the
officer conducting the prosecution or where the Magistrate is of
opinion that the personal attendance of the complainant is not
necessary, the Magistrate may dispense with his attendance and
proceed with the case.
(2)
The provisions of sub-section (1) shall, so far as may be, apply also
to cases where the non-appearance of the complainant is due to his
death.
From
the papers, it also appears that the learned counsel for the
appellant-complainant had never bothered to pray before the learned
Trial Court for non-attendance of the respondents-accused.
I have perused the said provision also. During the six years, the
complainant has never bothered to appear before the learned Trial
Court and never bothered to proceed with the matter. It appears
that due to sole negligency on the part of the complainant,
complaint of the complainant was dismissed by the learned Trial
Court. I have not found any substance in present appeal. In my
view, the learned Trial Judge, after appreciating the facts of the
case and law referred to above, has rightly dismissed the complaint.
The learned Magistrate has not committed any error of law or
fact-especially when the process is not served and even process fee
is also not paid, and so the complainant has no right to pray for
restoration. In view of the aforesaid observations, the said appeal
deserves to be dismissed.
Hence,
the appeal is hereby dismissed and the order dated 01st
August 2009 passed by the learned Metropolitan Magistrate Negotiable
Instruments Act, Court No.4, Ahmedabad is confirmed.
(Z.
K. Saiyed, J)
Anup
Top