IN THE HIGH COURT OF GUJARAT AT AHMEDABAD CRIMINAL APPEAL No. 1164 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 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO Whether this case involves a substantial 4 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 ========================================================= JAYENDRABHAI KANTILAL SHAH - Appellant(s) Versus OMPRAKASH J SHAH - PROP. JASRAJ CHAMNAJI & SONS & 1 -
Opponent(s) =========================================================
Appearance :
MS.DILBUR CONTRACTOR for Appellant(s) : 1, MR SANJAY G JOSHI for Opponent(s) : 1, PUBLIC PROSECUTOR for Opponent(s) : 2, =========================================================
CORAM : HONOURABLE MR.JUSTICE M.R. SHAH
Date : 08/10/2012 ORAL JUDGMENT 1.00. Present appeal has been preferred by the appellant – complainant to quash and set aside the impugned order passed by the learned Metropolitan Magistrate, Court No.3, Ahmedabad in Criminal Case No. 131 of 2008 dtd.31/7/2009 by which the learned Magistrate has dismissed the said complaint for default, filed by the appellant for the offence under section 138 of the Negotiable Instruments Act.
2.00. Ms.Contractor, learned advocate appearing on behalf of the appellant – original complainant has submitted that as such there was no negligence and/or malafide intention on the part of the appellant – complainant in not proceeding further with the criminal complaint. It is submitted that as such initially the appellant – complainant was remaining presently present in the court, however, due to his ill-health he could not thereafter remain present and in fact he was in contact / touch with his advocate, however there was no response from his advocate. She has further submitted that as such the case was transferred to the Metropolitan Magistrate, Court No.3, Ahmedabad, but the appellant was not aware about it and his advocate was not giving satisfactory reply and therefore, the appellant personally made inquiry and he came to know that the complaint has been dismissed for non-prosecution. It is submitted that as such it was the fault and/or negligence on the part of the advocate for not remaining present and therefore, the appellant should not be made to suffer. It is submitted that the appellant has a meritorious case with promissory note etc. and therefore, it is requested to give one additional opportunity to the appellant to submit the case on merits and restore the complaint even on imposing reasonable cost.
3.00. Mr.Sanjay Joshi, learned advocate appearing on behalf of the respondent No.1 – original accused has stated at the bar that as such against the cheque amount of Rs.1 Lac, the respondent No.1 – original accused has repaid approximately Rs.70,000/- to the appellant - original complainant through the intervention of mediator namely Mr.Rajesh Madhalal Jain (which is disputed by Ms.Contractor, learned advocate appearing on behalf of the appellant – original complainant).
4.00. Having heard Ms.Contractor, learned advocate appearing on behalf of the appellant – original complainant, Mr.Sanjay Joshi, learned advocate appearing on behalf of the respondent No.1 – original accused and Ms.Chetna Shah, learned Additional Public Prosecutor appearing on behalf of the respondent No.2 – State and considering the facts and circumstances of the case narrated hereinabove, it appears that for the negligence on the part of the advocate of the appellant, the appellant – original complainant should not be made to suffer. It is a cardinal principal of law that everybody should submit be given the opportunity to consider the case on merit. The explanation given by the learned advocate appearing on behalf of the appellant seems to be plausible and therefore, this Court is of the opinion that by imposing reasonable cost which is quantified at Rs.2500/-, to be deposited with the learned trial court within a period of two weeks from today and on permitting the respondent No.1 – original accused to withdraw the same, complaint can be restored to file.
5.00. Ms.Contractor, learned advocate appearing on behalf of the appellant has stated at the bar that if the complaint is restored to file, the appellant and/or his advocate shall fully cooperate the learned Metropolitan Magistrate in early disposal of the complaint/ Criminal Case.
6.00. Mr.Joshi, learned advocate appearing on behalf of the original accused has stated at the bar that even the respondent No.1 – original accused and/or his advocate shall cooperate the learned trial court in early disposal of the aforesaid complaint / case.
7.00. In view of the above and for the reasons stated above, present appeal succeeds. The impugned order passed by the learned Metropolitan Magistrate, Court No.3, Ahmedabad in Ex.1 in Criminal Case No.131 of 2008 dtd.31/7/2009 is hereby quashed and set aside and the Criminal Case No. 131 of 2008 is directed to be restored to file, in the court of learned Metropolitan Magistrate, Court No.3, Ahmedabad on condition that the appellant shall deposit a sum of Rs.2500/- towards costs of the respondent No.1 with the learned trial court within a period of two weeks from today. On such deposit, respondent No.1 – original accused is permitted to withdraw the same which shall be paid to the respondent No.1 by Account Payee Cheque on proper verification and identification, at the earliest.
Now, the contention raised on behalf of the respondent No.1 that the respondent No.1 has repaid approximately a sum of Rs.70,000/- is concerned, it will be open for the respondent No.1 herein to contend the same before the learned trial court which shall be considered by the learned trial court in accordance with law and on merits, after giving an opportunity to the petitioner herein, for which this Court has not expressed any opinion on merits.
Present appeal is allowed to the aforesaid extent.
Registry is directed to return R&P of the case to the trial court.
Direct Service is permitted.
rafik [M.R. SHAH, J.]