1. Present appeal under section 378(2) of the Code of Criminal Procedure has been passed by the appellant – original complainant against the judgment and order passed by the learned Judicial Magistrate, First Class, Vadodara in Criminal Case No.35887 of 2017, by which the learned Judge acquitted the respondent No.2 herein – original accused for the offence under section 138 of Negotiable Instruments Act.
2. Heard Mr.Jay Thakkar, learned advocate for the appellant – complainant and Mr.Sushil Shukla, learned advocate for the respondent accused and Ms.Moxa Thakkar, learned APP for the State.
3. Mr.Jay Thakkar, learned advocate for the appellant has vehemently submitted that the trial court has not decided the case on merits and has dismissed the case and acquitted the accused on the ground of non-availability of the complainant. He has further submitted that no reasonable and sufficient opportunity of being heard has been given to the complainant.
4. Per contra, Sushil Shukla, learned advocate for the respondent No.2 – original accused has submitted that earlier the complainant remained absent for one year and even after recording his evidence, he remained absent and hence the trial court has rightly dismissed the case and acquitted the accused.
5. Heard the learned advocates for the respective parties and perused the judgment and order of acquittal. On perusal of the impugned judgment, it is clear that the learned Judge has dismissed the case and acquitted the accused on the ground of non-availability of the complainant. On perusal of the rojkam it appears that no sufficient opportunity has been given to the complainant. Perusing the record of the case and more particularly the rojkam, it reveals that the case was filed on 25/10/2017 and the complainant remained present on 14/3/2018, 2/5/2018, 20/6/2018, 27/7/2018,19/9/2018, 2/11/2018, 30/11/2018, 4/1/2019, 5/1/2019, 25/2/2019, 25/4/2019, 7/5/2019 and on 16/5/2019. The cross examination of the complainant was started and recorded on 16/5/2019. Thereafter, the case was adjourned for recording further cross examination of the complainant and the complainant remained present before the trial court on 22/5/2019, 4/6/2019, 5/7/2019, 29/7/2019, 31/8/2019, 25/9/2019, 9/10/2019, 6/11/2019, 4/1/2020 and on 4/1/2020. On 4/1/2020 the case was adjourned on the ground of settlement. Thereafter on the next date on 6/2/2020, the complainant was not present and hence right of the complainant of leading evidence was closed and even the right of leading FS was also closed and the matter was kept on pronouncement of judgment. Thus, though on the earlier date the matter was adjourned for settlement and merely on one occasion, the complainant was not present, his right of leading evidence has been closed, which cannot be sustained. Thereafter on the next date i.e. on 20/3/2020 judgment has been pronounced and the accused came to be acquitted. Thus, from the rojkam it is clear that the complainant has practically remained present all through out and merely because he did not appear for once, the trial court acquitted the accused by dismissing the case. It is also pertinent to note that though the case was adjourned number of times for recording further cross examinations of the complainant, no cross examination of the complainant was recorded. From the rojkam it is clear that the learned Judge in haste of disposing the case, has not decided the case. Since the matter is not decided on merits and no reasonable opportunity of being has been given to the complainant, I am of the opinion that the matter is required to be remanded. Hence the following order.
The matter is remanded to the concerned t
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rial court with a direction to restore the matter to the file of the trial court and to decide the case on merits, after giving reasonable and sufficient opportunity to the parties to lead evidence, preferably within a period of three months from the date of receipt of this judgment and order. Parties are directed to co-operate the learned trial court in early disposal of the case on merits, as aforesaid.