IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL REVISION APPLICATION No. 250 of 2012
With
CRIMINAL REVISION APPLICATION No. 251 of 2012
For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 3 2 To be referred to the Reporter or not ? NO Whether their Lordships wish to see the fair copy of the judgment ? NO Whether this case involves a substantial question 4 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 ========================================================= JANAK HASMUKHBHAI PRAJAPATI - PROP. OF ADITYA CREATION -
Applicant(s) Versus STATE OF GUJARAT & 1 - Respondent(s) =========================================================
Appearance :
MR VISHAL B MEHTA for Applicant(s) : 1, PUBLIC PROSECUTOR for Respondent(s) : 1, MR BN LIMBACHIA for Respondent(s) : 2, MR. RAHUL R DHOLAKIA for Respondent(s) : 2, =========================================================
CORAM : HONOURABLE MR.JUSTICE M.R. SHAH
Date : 31/08/2012 ORAL JUDGMENT 1.00. RULE. Ms.Chetna Shah, learned Additional Public Prosecutor waives the service of notice of rule on behalf of the respondent No.1 – State and Mr.BN Limbachia, learned advocate waives the service of notice of rule on behalf of the respondent No.2.
2.00. With the consent of the learned advocates appearing on behalf of the respective parties and in the facts and circumstances of the case, both these Revision Applications are taken up for final hearing today.
3.00. As common question of facts and law arise in both these Criminal Revision Applications and are between the same parties, both these Revision Applications are heard, decided and disposed of by this common judgement and order.
4.00. Criminal Revision Application No. 250 of 2012 under section 397 r/w section 401 of the Code of Criminal Procedure has been preferred by the petitioner herein – appellant in Criminal Appeal No.169 of 2011 to quash and set aside the impugned Judgement and Order passed by the learned appellate court - learned Additional Sessions Judge, City Civil & Sessions Court, Court No.15, Ahmedabad in Criminal Appeal No.169 of 2011 dtd.17/2/2012 by which the learned appellate court has dismissed the said appeal as the learned advocate appearing on behalf of the appellant before the appellate court remained absent at the time when the aforesaid appeal was taken up for final hearing.
4.01. Criminal Revision Application No. 251 of 2012 under section 397 r/w section 401 of the Code of Criminal Procedure has been preferred by the petitioner herein – appellant in Criminal Appeal No.170 of 2011 to quash and set aside the impugned Judgement and Order passed by the learned appellate court - learned Additional Sessions Judge, City Civil & Sessions Court, Court No.15, Ahmedabad in Criminal Appeal No.170 of 2011 dtd.17/2/2012 by which the learned appellate court has dismissed the said appeal as the learned advocate appearing on behalf of the appellant before the appellate court remained absent at the time when the aforesaid appeal was taken up for final hearing.
5.00. Mr.Vishal Mehta, learned advocate appearing on behalf of the common petitioner has submitted that as such the Criminal Appeal was of the year 2011 only and as such there was no malafide intention and/or other intention on the part of the appellant and/or his advocate not to remain present before the learned appellate court at the time when the appeal was taken up for final hearing. Therefore, it is requested to give one additional opportunity to the petitioner to submit the case on merits in the appeal before the learned appellate court on any condition that may be imposed by this Court and on an assurance by the petitioner that he shall appear before the learned appellate court on the next date of hearing either in person or through advocate and there shall not be unnecessary adjournment sought on the part of the petitioner herein – appellant in the appeal before the learned appellate court.
6.00. Mr.Limbachia, learned advocate appearing on behalf of the respondent No.2 – original complainant has submitted tht as such no illegality has been committed by the learned appellate court in dismissing the appeal in default as neither the appellant nor his advocate remained present at the time when the appeal was taken up for final hearing. However, has submitted that if this Court is inclined to remand the matter to the learned appellate court on imposing reasonable cost, in that case, suitable observations be made that the appellant in the appeal – petitioner herein or his advocate shall cooperate the learned appellate court in deciding the appeal at the earliest failing which it will be open for the learned appellate court to proceed further with the hearing of the appeal ex- parte.
7.00. Having heard the learned advocates appearing on behalf of the respective parties and in the facts and circumstances of the case, it appears that the common petitioner in both the Revision Applications should be given one additional opportunity to submit the case before the learned appellate court on merits rather than non-suiting him on the technical ground, on imposing reasonable cost and on condition that as and when the appeal is taken up for final hearing before the learned appellate court, the petitioner herein – appellant in the appeal shall make himself available either in person or through his advocate and argue out the appeal. In the facts and circumstances of the case, this Court is of the opinion that on imposing cost of Rs.10,000/- (in all for both the matters), the impugned orders passed by the learned appellate court may be quashed and set aside and the matter be remanded to the learned appellate court to decide the appeals afresh in accordance with law and on merits. It is reported that the respondent No.2 herein – original complainant has been given Demand Draft bearing No.788626 of Rs.10,000/- which is confirmed by Mr.Limbachiya, learned advocate appearing on behalf of the respondent No.2 – original complainant.
8.00. In view of the above, the impugned order passed by the learned Additional Sessions Judge, City Civil & Sessions Court, Court No.15, Ahmedabad in Criminal Appeal No.169 of 2011 dtd.17/2/2012 as well as the order passed by the learned Metropolitan Magistrate (NI Act Court No.6) Ahmedabad in Criminal Case No.1519 of 2009 dtd.15/4/2011, impugned in the Criminal Revision Application No.250 of 2012 as well as the impugned order passed by the learned Additional Sessions Judge, City Civil & Sessions Court, Court No.15, Ahmedabad in Criminal Appeal No.170 of 2011 passed by the dtd.17/2/2012 as well as the order passed by the learned Metropolitan Magistrate (NI Act Court No.6) Ahmedabad in Criminal Case No.1518 of 2009 dtd.15/4/2011, impugned in the Criminal Revision Application No.251 of 2012, are hereby quashed and set aside and both the aforesaid appeals being Criminal Appeal Nos.169 and 170 of 2011 are hereby remanded to the learned appellate court to decide and dispose of both the appeals afresh in accordance with law and on merits at the earliest but not later than 30/6/2013.
It is agreed by Mr.Vishal Mehta, learned advocate appearing on behalf of the petitioner – original appellant that the petitioner herein – appellant in the appeals and/or his advocate shall fully cooperate the learned appellate court in early disposal of the appeals, as directed by this Court and shall not ask for any unnecessary adjournment.
Rule is made absolute accordingly in each of the Revision Applications.
rafik [M.R. SHAH, J.]