Induslnd Bank Ltd., Through ... vs K.M. Construction Company ...
2017 Latest Caselaw 4392 Bom

                                                                                     1                         Cr.Appeal 87.2017 - [J]


                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                            BENCH AT AURANGABAD


                                          CRIMINAL APPEAL NO. 87 OF 2017




                      IndusInd Bank Ltd. having its
                      Regd. Office at 2401, General
                      Thimmayya Road, Cantonment
                      Pune         and        having its Branch
                      office at            "Chounde Complex"
                      Rajiv          Gandhi           Chowk, Latur,
                      Dist. Latur Thr. its authorized
                      person - Sharad s/o Madhukarrao
                      Rudre, Age : 40 Yrs., Occ. Service,
                      R/o : Beed Bypass, Satara Parisar,                                         ....... APPELLANT/
                      Aurangabad.                                                        [ORI.COMPLAINANT]




                                             VERSUS



                      K.M.Construction Company
                      Thr. its partner/
                      authorized signatory
                      Govind s/o Narayan Munde
                      Age : Major, Occ. Business,
                      R/o : Munde                 Niwas,
                      Meera Nagar, Old Ausa Road,                                            ..... RESPONDENT/
                      Latur.                                                                          [ORI.ACCUSED]




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                                                        .............................

                                 Mr. M.D.Narwadkar, Advocate for Appellant.
                                 Mr. A.A.Mukhedkar, Advocate for Respondent.
                                                       ..............................
                                                          CORAM : V.L.ACHLIYA, J.

DATE OF JUDGMENT : 12/07/2017 .............................

ORAL JUDGMENT :

1. In view of the limited challenge raised in the

Appeal as to the order of dismissal of the complaint in

default of the complainant, by consent the Appeal is finally

heard at the stage of admission by dispensing with paper

book.

2. The challenge raised in the Appeal confines to

the legality of the Order dated 11/04/2014 passed by the

Judicial Magistrate First Class [Court No. 8], Latur in

S.T.C. No. 1403/2012. By the impugned order, learned

Magistrate dismissed the complaint and acquitted the

accused by observing that the complainant is not

interested in the matter. By recording absence of the

complainant, dismissed the complaint for want of

prosecution and acquitted the accused. So also, passed

order to cancel his bail bonds. The order reads as under,

3 Cr.Appeal 87.2017 - [J]

" Complainant and his Advocate are absent since long. Case was fixed for steps. No steps has been taken by complainant. This Court has passed order below Exh. 1 on 29/01/2014 to put up the case for dismissal order on next date i.e. on 26/03/2014. Even on 26/03/2014 also opportunity was given to the complainant, but on that day also he remained absent and did not take any steps. On 26/03/2014 also complainant and his Advocate were absent.

Therefore, case is put up today for dismissal order. Today also complainant and his Advocate are absent when called repeatedly till 5.45 p.m. It appears that complainant is not interested in the matter. Hence, complaint stands dismissed for want of prosecution. The accused is acquitted of the offence punishable u/s 138 of the Negotiable Instruments Act. Bail bonds of accused stand cancelled. "

3. Learned counsel for the appellant assailed the

impugned order with contention that the order is passed

without proper application of mind. It is contended that

there was no occasion for the Court to invoke the

provisions of Section 256 of the Code of Criminal

4 Cr.Appeal 87.2017 - [J]

Procedure and to dismiss the complaint and acquit the

accused. It is pointed out that the case was lying at the

stage of service of summons to the accused. The

summons issued to the accused returned unserved for one

or the other reason. The appellant has taken all necessary

steps to serve the summons and also furnish new address

of accused. It is pointed out that the applicant has paid

one time process fee as per the rules prevailing. Service

of summons upon the accused was dependent upon the

efforts to be made on the part of police machinery. In

spite of efforts taken by complainant, if the accused was

not served, the trial Court should not have dismissed the

complaint and acquitted the accused. It is pointed out

that the complaint was dismissed at the stage of service of

summons. In this back-ground, learned counsel submits

that the order is not sustainable in law.

4. On the other hand, learned counsel for the

respondent strenuously contended that the impugned

order is fully in consonance with law and there is

absolutely no illegality and impropriety committed on the

part of the trial Court in passing the order. He submits

that the case was repeatedly adjourned for taking steps to

effect service of summons upon the accused. The

5 Cr.Appeal 87.2017 - [J]

complainant and its Advocate failed to record their

appearance on the date of listing of case before the Court.

Taking note of continuous non appearance of the

complainant and its Advocate, the trial Court has passed

the impugned order in exercise of powers u/s 256 of the

Code of Criminal Procedure. He, therefore, urge to

dismiss the Appeal.

5. In order to appreciate the submissions

advanced, I have perused the record and proceedings of

the case. The complainant is a Bank registered under the

provisions of the Companies Act. The complainant - Bank

filed complaint u/s 138 of the Negotiable Instruments Act

as against the accused alleging therein that he had

secured loan of Rs. 9,00,000/- in the year 2009, which he

agreed to pay within the period of three years. The

accused failed to pay the amount as per the agreement.

He had issued three cheques of Rs. 1,40,000/- each

bearing Nos. 14657, 14658 and 14659 dated 05/07/2012

drawn and payable from his account with Axis Bank,

branch at Ausa, District Latur towards the payment of

outstanding dues. When those cheques were presented

for encashment, same were dis-honoured with remarks

"for want of sufficient funds ". In spite of receipt of

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statutory notice, the accused failed to comply with the

notice. Therefore, the complainant filed complaint u/s 138

of the Negotiable Instruments Act. The complaint was

presented on 20/09/2012. On due consideration of the

complaint, the documents produced and the affidavit filed

in support of the complaint as verification statement,

learned Magistrate pleased to issue process u/s 138 of the

Negotiable Instruments Act vide order dated 02/02/2013.

6. Perusal of the record and particularly Roznama

reveals that the summons which was issued to the

accused was returned unserved with an endorsement that

the accused was not found on the address given and the

premises found to be permanently locked. Thereafter, the

complainant moved an application seeking issuance of

fresh summons at the new address of the accused

mentioned in the application. The application was moved

on 04/07/2013 vide Exh. 6. The application was granted

and the order was passed to re-issue summons as per the

prayer made in the application. Subsequent thereto the

summons was issued at new address, which was also

returned unserved with report that as the police

machinery was busy in maintaining law and order, service

could not be effected within time. Thereafter, the

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complainant again moved an application vide Exh. 7 to re-

issue summons. The summons was re-issued again

returned unserved with the report that the accused was

not found at the given address.

7. Thus, on the basis of the record, it can not be

stated that the complainant was not interested to

prosecute the proceeding or failed to take steps to effect

service upon the accused. On the contrary, the

complainant has taken steps necessary for effecting the

service. It is due to fault on the part of the machinery

entrusted with the job to effect service on the accused,

the summons could not be served. The summons issued

were returned for one or the other reason.

8. It is pointed out by the learned counsel for the

applicant that by virtue of rules framed in the year 2006,

the procedure of payment of process fee was simplified. In

stead of repeatedly paying process fee, the procedure of

payment of one time process fee was introduced. The

relevant rule reads as under :

                                             "          The following Rules made by the
                                             High Court under section 32 of the





                                                                                      8                         Cr.Appeal 87.2017 - [J]

Bombay Court-fees Act, 1959 have been approved by the Government of Maharashtra and published in the Official Gazette.

The fees chargeable for serving and executing processes issued by Criminal Courts in the case of offences, other than offences for which Police Officers may arrest without a warrant, shall be as prescribed below :

[a] Irrespective of nature and valuation of subject-matter of dispute for all type of processes like, summonses, notices, warrants, proclamation, injunction orders, sale notices etc. but shall not include poundage fees, fees shall be charged at the rate of Rs. 50 for each defendant/respondent/non-applicant or accused.

[b] [Such process fees shall be charged and paid within three days from the date of [Charging of process fees] issuing notice. No process fee shall be charged for serving the process again on the same set of defendants/respondents/non-

applicants/accused or their legal representatives till the proceedings is disposed of by the Court :

9 Cr.Appeal 87.2017 - [J]

Provided that failure to pay the process fees within two weeks from the date of order passed by the Court will result in automatic dismissal of the proceedings for non-prosecution :

Provided that no fees shall be levied on any process issued upon the complaint to any Public Officer acting as such Public Officer].

[c] The Court may remit the process fees in any case, in whole or in part, whenever the Court is satisfied that the complainant or accused has not the means of paying them.

[d] Process fees are leviable from Municipalities in respect of summonses and warrants issued in cases falling under section 296 (3) of the Maharashtra Municipal Councils, Nagar Panchayats and Industrial Townships Act, 1965.]."

9. In the back-ground of the provisions providing

one time payment of process fee, learned counsel

submitted that as the complainant has paid one time

process fee, the complaint should not to have been

dismissed. So also the accused should not have been

acquitted. It is contended that if the summons issued was

returned, it was expected that the order of re-issuance of

10 Cr.Appeal 87.2017 - [J]

summons ought to have been passed at the motion of the

Court. The presence of complainant was not required for

passing such order. It is further pointed out that the

respondent/accused had not appeared in the matter. Still

the Court has passed order of acquittal of the accused and

cancellation of bail bonds, which reflects non application of

mind on the part of learned Magistrate.

10. In my view, the order passed by the trial Court

is not sustainable in law. As discussed, there was no fault

on the part of the complainant to take effective steps to

serve the respondent. The complainant has taken

necessary steps to effect the service. The service could

not be effected for one or the other reason, as discussed

above. The order passed by the trial Court reflects non

application of mind on the part of learned Magistrate.

Although the accused was not served with the summons,

nor appeared and furnished the bail; still the learned

Magistrate has dismissed the complaint, acquitted the

accused and passed order of cancellation of bail which was

never furnished by the accused.

11. If we consider the provisions of section 256 of

Code of Criminal Procedure, then although the Court is

11 Cr.Appeal 87.2017 - [J]

vested with the power to dismiss the complaint in the

eventualities referred in section 256 of the Code of

Criminal Procedure, but the exercise of such powers

necessarily requires application of mind before passing of

such drastic order. Such powers are expected to be

exercised when the case is listed for hearing. In the

instant case, the case was lying at the stage of service of

summons upon the accused. Although the accused was

called upon to face the prosecution, the accused had not

appeared. The case has not proceeded a stage ahead of

issuance of summons to the accused. Thus, there was no

stage of effective hearing of the complaint. The

complainant is a juristic person i.e. Bank. It has to

function through its Officers. While dismissing the

complaint, the Court out to have taken into account the

serious consequences to follow of such dismissal. In the

facts and circumstances of the case, it was expected on

the part of the Court to have re-issued the summons, as

the summons earlier could not be served on account of

failure of the police machinery to serve the summons to

the accused. It is pertinent to note that though the police

had reported that the accused was not found on the

address given and returned the summons unserved but in

the proceeding before this Court, the service of notice of

12 Cr.Appeal 87.2017 - [J]

present proceeding was effected upon accused at same

address. In spite of service of notice, the accused failed to

appear. Therefore, this Court was required to issue

bailable warrant to secure his presence. On service of

bailable warrant, the respondent/accused appeared before

this Court, which reflects the conduct of the accused to

avoid service.

12. Thus, considering overall facts and

circumstances of the case, I am of the view that the

impugned order deserves to be set aside and the case

needs to be remanded to the trial Court. I am, therefore,

inclined to allow the Appeal and pass following order.

ORDER

[i] Criminal Appeal is allowed in terms of prayer clause 'D'.

[ii] The complainant and the respondent/accused are directed to appear before the trial Court on 07/08/2017.

[iii] The respondent/accused is directed to furnish bail to the satisfaction of the trial Court.

[iv] In case, the respondent/accused fails to appear, the trial Court will be at liberty to take appropriate

13 Cr.Appeal 87.2017 - [J]

steps to compel the presence of accused by adopting appropriate mode of service as provided under the Code of Criminal Procedure. No fresh service to be effected on the accused.

[v] Record and proceedings be sent to the trial Court forthwith.

[vi] The Appeal stands disposed of in above terms.

[V.L.ACHLIYA, J.]

KNP/Cr.Appeal 87.2017 - [J]