NEUTRAL CITATION
R/CR.A/2486/2023 JUDGMENT DATED: 03/11/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2486 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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HDFC BANK LTD. THRO ANIL SANKHLA S/O BRIJMOHAN SANKHLA
Versus
STATE OF GUJARAT
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Appearance:
MR HARNISH V DARJI(3705) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2
MR PRATIK Y JASANI(5325) for the Opponent(s)/Respondent(s) No. 3
MR BHARGAV PANDYA APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 03/11/2023
ORAL JUDGMENT
Rule. Mr.Pratik Jasani, learned advocate for Respondent No.3 and Mr.Bhargav Pandya, learned APP for Respondent - State waive service of rule on behalf of respective parties. Page 1 of 8 Downloaded on : Wed Nov 08 20:35:53 IST 2023
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1. This appeal is filed challenging the judgment and order passed by learned Special Court, Negotiable Instruments Act, Rajkot dated 17.4.2023 in Criminal Case No.4184 of 2017 by which the complaint came to be dismissed.
2. It is the case of the complainant that complainant-Bank had given the finance by way of term loan to the respondent-accused and for which the agreement came to be executed being Agreement No.81118120 with the respondent-accused. Respondent had issued the cheque bearing No.465695 on 5.11.2016 for the amount of Rs.50 lacs for the repayment of the loan. On depositing the same, the cheque was dishonored on the ground of account closed on 3.2.2017. After following procedure prescribed under the Act, the private complaint came to be filed being Criminal Case No.4184 of 2017 before the Competent Court under Section 138 read with Section 142 of the Negotiable Instruments Act.
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3. After following the procedure, summons came to be issued vide an order dated 20.4.2017 by the learned Court. On the day when the impugned order was passed, the application was given by learned advocate for the complainant that authorized officer by whom the complaint is filed is to be changed, therefore, an adjournment was sought in the interest of justice. Learned Court by observing that on 11th October, 2017, the plea was recorded and thereafter the case is at the stage of evidence of the complainant but the complainant is not remaining present for cross examination and due to same, case could not be proceeded further and therefore, application for seeking an adjournment was rejected on 17.4.2023. On the very day, further separate order was passed by the learned Court dismissing the case for non prosecution and declaring the acquittal of the respondent-accused, which is impugned before this Court.
4. Heard the learned advocates for the parties.
5. Learned advocate, Mr.Darji, for the applicant submitted that learned Court below had erred in observing that despite Page 3 of 8 Downloaded on : Wed Nov 08 20:35:53 IST 2023 NEUTRAL CITATION R/CR.A/2486/2023 JUDGMENT DATED: 03/11/2023 undefined repeated call out, neither the complainant nor advocate was remained present. Learned advocate submitted that application was given for an adjournment which was dismissed by the learned Court below on 17.4.2023. Therefore, the observation with regard to non remaining present of the learned advocate is not true and correct as learned Court himself recorded in the order with regard to the presence of the learned advocate for the complainant. Mr.Darji, learned advocate for the appellant submits that originally the complaint was instituted by authorized officer, namely, Mr.Sagar Kotecha, who resigned from the Company on 22nd October, 2019, thereafter, Mr. Anil Sankhana was given the charge of Authorized Officer and Senior Manager of the Bank and therefore, the name of Mr. Sankhela is to be replaced. However, without giving the opportunity, learned Court below had passed judgment and order of acquittal on the ground of non remaining present of the complainant. Therefore, learned advocate submitted that it deserves to be quashed and set aside.
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6. On the other hand, learned advocate for the respondent No.2 submitted that in the impugned order, the observation is made by learned advocate that because at the stage of cross examination of the complainant neither the advocate nor the complainant is remaining present before the Court and time was sought which was rejected. Therefore, learned Court below rightly dismissed the complaint by exercising the power under Section 256 of the Code of Criminal Procedure and acquitted the respondent - accused from the charges and same is not required to be interfered with and the appeal deserves to be dismissed.
7. Considering the arguments submitted by learned advocates for the respective parties, Section 256 of the Code of Criminal Procedure, 1973 is required to be relooked again.
Section 256 in The Code Of Criminal Procedure, 1973
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 to 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:
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NEUTRAL CITATION R/CR.A/2486/2023 JUDGMENT DATED: 03/11/2023 undefined 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.
8. This Court has gone through the Record and proceedings of the case wherein, it transpires from the Rojkam that prior to the date when the impugned order was passed on 3.4.2023, learned Court was on leave. Before that on 18.3.2023, the exemption application was given by the accused and adjournment application was given by the complainant. Even prior to that also, the same situation is also there and case was adjourned for number of occasions either on the application of the accused or on the application of the complainant. It is undisputed fact that case is at the stage of cross examination. However, due to the change of authorized officer, the same could not be concluded and therefore the application was given seeking adjournment to replace the complainant.
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9. The principal of natural justice is required that due opportunity be given to the parties to adduce or produce the respective evidence before the Court and matter be decided on its own merits. Simultaneously, as due to default of the complainant, the respondent-accused has to come before this Court, therefore, the appropriate cost is required to be awarded to the accused while quashing and setting aside the impugned order. Therefore, this Court is of the view that impugned order deserves to be quashed and matter is required to be restored to its original file. The appellant is directed to deposit the cost of Rs.15,000/- with the Registry of this Court within a period of 2 (two) weeks from today and same shall be disbursed to the respondent-accused after due verification. It is needless to say that the parties shall not seek adjournment unless warranted due to the emergency and would see that the case is concluded without further delay.
10. In view of the above, impugned order passed by the learned learned Special Court, Negotiable Instruments Act, Rajkot dated 17.4.2023 in Criminal Case No.4184 of 2017 is Page 7 of 8 Downloaded on : Wed Nov 08 20:35:53 IST 2023 NEUTRAL CITATION R/CR.A/2486/2023 JUDGMENT DATED: 03/11/2023 undefined quashed and set aside. Criminal Case is restored to its original file. Rule made absolute.
Records and proceedings be sent back forthwith.
(M. K. THAKKER,J) ASHISH M. GADHIYA Page 8 of 8 Downloaded on : Wed Nov 08 20:35:53 IST 2023