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CR.A/526/2011 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL
APPEAL No. 526 of 2011
For
Approval and Signature:
HONOURABLE
MR.JUSTICE MD SHAH
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
YES
2
To be
referred to the Reporter or not ? NO
3
Whether
their Lordships wish to see the fair copy of the judgment ? NO
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ? NO
5
Whether
it is to be circulated to the civil judge ? NO
=========================================================
INDU
NISSAN OXO CHEMICALS INDUSTRIES LTD,THRO'MANAGING DIREC -
Appellant(s)
Versus
STATE
OF GUJARAT & 1 - Opponent(s)
=========================================================
Appearance
:
MR
MURALI N DEVNANI for
Appellant(s) : 1,
MR LR PUJARI, ADDL.PUBLIC PROSECUTOR for
Opponent(s) : 1,
RULE SERVED for Opponent(s) : 2,
MR ASHISH M
DAGLI for Opponent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE MD SHAH
Date
: 03/10/2011
ORAL
JUDGMENT
1. The
appellant – original complainant has filed this appeal for
quashing and setting aside the impugned order dated 8.3.2011
passed by the learned Chief Judicial Magistrate, Vadodara in Criminal
Case No.5060 of 1995.
2. The
brief facts giving rise to this appeal are as under:
2.1 The
Apex Petrochemicals Limited – respondent No.2 – herein had
purchased from the complainant appellant herein 81,150 kgs of Iso
Octanol amounting to Rs.50,30,200/-. Against this the accused company
had issued seven account payee cheques in favour of complainant.
However the said cheques were dishonoured due to insufficient funds.
Thereafter the complainant had issued a legal notice to the accused
company on 19.10.1995 regarding the dishonour of the said cheques by
registered post. The said notice dated 19.10.1995 wad duly served to
the accused company on 21.10.1995. However, the accused company has
failed to pay the amount in question and the accused company has
neither replied to the said notice nor complied with the requirements
of the said notice, and thereby committed an offence punishable
under Section 138 and 141 of the Indian Negotiable Instruments Act.
Thereafter the complainant had filed a complaint before the learned
Chief Judicial Magistrate, Baroda against the accused-company. The
learned trial court vide order dated 8.3.2001 has dismissed the said
complaint for want of prosecution and thereby acquitted the accused.
Hence this appeal.
3. Heard
learned advocate Mr.Murli Devnani for the appellant, learned APP
Mr.L.R.Pujari for the respondent No.1-State and learned advocate
Mr.Ashish Dagli for the respondent No.2.
4. It
is submitted that the present respondent No.2-accused company had
preferred one Criminal Misc. Application No.13055 of 2007 against the
appellant company before this Court whereby this Court (Coram: Akil
Kureshi, J.) on 1.11.2007 has passed the the following order.
“At
this stage, I am not inclined to interfere with the trial. Whether
there was a service of notice on the petitioner on 19.10.1995 or
whether there was service of the notice for the first time on
21.10.1995 is the matter to be examined during the course of trial.
At this stage, where the trial is midway, I do not find it proper to
interfere and hazard a conclusion on the basis of oral evidence,
which may have been recorded. Secondly, the complaint was filed in
1995, the petitioner was served with the process of the Court
proceeding many years back. He also participated in the trial. On
these grounds, I do not see any scope for quashing the pending
complaint.
However,
if the petitioner is correct in his assertion that the complainant is
delaying the proceedings, it is expected that the learned Magistrate
shall take suitable steps to prevent hardship to the petitioner and
miscarriage of justice and shall endeavour to complete the trial
preferably within four months from the receipt of a copy of this
order subject to the cooperation by the petitioner.
With
these observations, the petition is dismissed.”
5. In
spite of the above-referred order passed by this Court (Coram: Akil
Kureshi, J.), the trial court has not commenced the trial though the
chief-examination of the complainant and the evidence was tendered
way back in the year 2005, and thereupon as per the Rojkam, number of
times the matter was adjourned for one or other reason. Thereafter
the trial court has adjourned the matter on 23.12.2010 for recording
of the evidence, but as the trial court was busy with other work and
the court time was over, the matter was adjourned to 17.1.2011.
Thereafter on 17.1.2011 the complainant and the respective parties
are present but as the trial court was busy with another matter, the
matter could not proceed further and the matter was adjourned to
8.3.2011. Thereafter on 8.3.2011 the complainant or his learned
advocate could not remain present and as the matter is very old, the
complaint was dismissed by the trial court which shows that the
complainant was not present on 17.1.2011.
6.
Reliance is placed on a decision of this Court (Coram: S.K.Keshote,
J.) in the case of Ratanlal Gulabchand Gupta vs. Sahara Gruh Udyog
Bhandar and others decided in Special Criminal Application No.527
of 1999 decided on 20.2.2001, more particularly head-note (A) which
reads under:
“Criminal
Procedure Code, 1973 (II of 1974) – Sec.256 – Negotiable
Instruments Act, 1881 (XXVI of 1881) – Sec.138 –
Complaint for offence under Sec.138 dismissed on the ground of
absence of complainant even though Advocate had been engaged –
Complainant should not be penalised for negligence of Advocate –
In a case of this nature, presence of complainant would not be
necessary on every date – Matter restored.”
7.
It is submitted by learned advocate Mr.Dagli for the respondent
No.2-accused that the trial court has granted exemption to the
accused from remaining present as undertaking was given by the
accused before the trial court that in his absence if the case is
conducted, he has no objection. It is also submitted by learned
advocate Mr.Dagli that as and when required, the accused will remain
present before the trial court. It is submitted by learned advocates
for both the parties that the complainant as well as the accused will
remain present before the trial court and will also give full
cooperation for conducting the matter and they will not ask any
unnecessary adjournments.
8.
This Court has gone through the averments made in this appeal as
well as Rojkam of the case and the impugned order passed by the trial
court. Considering the aforesaid facts and circumstances of the case
and in view of the decision relied on by the learned advocate for the
appellant in the case of Ratanlal Gulabchand Gupta (supra), the
complainant should not be penalised for negligence of advocate. In
view of the above, in the opinion of this Court, if some suitable
cost will be imposed to the complainant, the same will meet with the
ends of justice.
9. In
view of the above, the appeal is allowed. The impugned order dated
8.3.2011 passed by the learned Chief Judicial Magistrate, Vadodara in
Criminal Case No.5060 of 1995 is hereby quashed and set aside. The
appellant is directed to pay cost Rs.5,000/- to the respondent
No.2-accused. The trial court is directed to give priority and
conduct the matter by keeping on day to day basis as the matter is of
the year 1994, and decide the same in accordance with law.
Registry is directed to send back Record & Proceedings to the
trial court forthwith.
(
M.D. SHAH, J. )
syed/
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