Bombay High Court
Saraswat Cooperative Bank Ltd. ... vs Mohd. Jafar S/O Abdul Rahim on 12 October, 2017
Bench: R. B. Deo
apeal222.16.J.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO.222 OF 2016
Saraswat Cooperative Bank Limited
A Bank Registered under the Maharashtra
Cooperative Societies Act, through its
Manager Shri N.L. Yadav, having its
Registered Office at Nikadwari Lane,
Girgaum and Branch Office at Gandhibagh,
Nagpur. ....... APPELLANT
...V E R S U S...
Mohd. Jafar s/o Abdul Rahim
Aged about 48 years,
Occ: Business, R/o Municipal
Corporation House No.363,
City Survey No.279, Sheet No.137,
situated at Mohammad Ali Road,
Mominpura, Ward No.49,
Nagpur - 440 018. ....... RESPONDENT
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Shri M.D. Samel, Advocate for Appellant.
None for Respondent.
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CORAM: ROHIT B. DEO, J.
DATE: th
12 OCTOBER, 2017.
ORAL JUDGMENT
1] The appellant Bank is aggrieved by the order dated
01.03.2014 in Summary Criminal Case 711/2005 delivered by the
31st Joint Civil Judge, Junior Division and Judicial Magistrate First
Class and Special Court of 138 Negotiable Instruments Act,
Nagpur, by and under which, the complaint under section 138 of
the Negotiable Instruments Act, 1881 (Act for short) is dismissed
in view of the absence of the complainant and the counsel.
2] The complainant is engaged in the business of
banking. The gist of the complaint under section 138 of the Act is
that the accused who is proprietor of M/s. Taj Trading Company
was extended a housing loan of Rs.10,00,000/- on 08.07.2003 -
09.07.2003.
3] The accused was irregular in payment of the loan
installments and did not credit any amount in the loan account
after 31.03.2004. The loan was recalled in November, 2004 and
the accused was asked to liquidate the entire loan by paying
Rs.11,05,000/- being the amount due inclusive of interest.
4] The accused issued cheque dated 23.11.2004 in
favour of the complainant, the same cheque was presented to the
banker of the accused on 24.11.2004, the cheque was
dishonoured, the statutory notice was issued and since the
accused did not make the payment of the amount covered by the
cheque, the complaint under section 138 of the Act was instituted.
5] Shri M.D. Samel, the learned counsel for the
complainant has invited my attention to the order-sheet of the
proceeding. The effort of Shri Samel is to demonstrate that since
the very institution of the complaint, the complainant and his
counsel have been attending the Court diligently.
However, despite every effort, the accused could not be served
with the summons. My attention is also invited to the fact that for
a substantial period, intermittently, the case papers were not
traced and no progress in the proceedings was possible.
Shri Samel invites my attention to the fact that as on 01.03.2014
when the Trial Court dismissed the complaint, the stage was
return of warrant. The submission is that since the complaint was
not fixed for hearing, the presence of the complainant or the
counsel was not absolutely necessary and at any rate the Trial
Court ought not to have dismissed the complaint.
6] Shri Samel relies on the judgment of this Court in
2012 ALL MR (Cri) 197 Sau. Kasabai w/o Jagannath Kondke Vs.
Sau. Chandrabhagabai w/o Ramrao Kondke & Ors. and a judgment
of the Himachal Pradesh High Court in Boby Vs. Vineet Kumar
2010 (2) Civil LJ 482 in particular to paragraphs 10, 11 and 12 of
the said judgment which read thus:
10. Thus when the Court notices that the
complainant is absent on a particular day, the Court
must consider whether the personal attendance of the
complainant is essential on that day for the progress of
the case and also whether the situation does not justify
the case being adjourned to another date due to any
other reason. If the situation does not justify the case
being adjourned, the Court is free to dismiss the
complaint and acquit the accused. But if the presence of
the complainant, on that day was quite unnecessary,
then resorting to the step of axing down the complaint
may not be a proper exercise of the powers, envisaged
in the section.
11. Therefore, the discretion in the aforesaid
section has to be exercised fairly and judiciously
without impairing the cause of administration of
criminal justice, which should be spelt out from the
order passed by the Court.
12. In the facts in hand, the learned Trial Court
has given a complete go by to the essential
requirements of Section 256 of the Code and did not
record the reason whether the presence of complainant
was essential for the progress of the case, which on facts
was not; therefore, the impugned order is indefensible,
thus unsustainable, thus, set aside. Consequently, the
complaint aforesaid is remanded back to the learned
Trial Court for its disposal in accordance with law. It
shall be entered against its original number.
7] My attention is also invited to a judgment of this
Court in Pratap vs. Bhagwandas 2012 (2) Civil LJ 236 to buttress
the submission that the dismissal of the complaint is not
warranted.
8] On perusal of the order-sheet, I have no hesitation in
recording a finding that the dismissal of the complaint is
absolutely unwarranted and unsustainable. The order-sheet
reveals that the complainant along with counsel diligently
appeared before the Magistrate on most of the dates of hearing.
That apart, since the complaint was fixed only for return of
warrant, the complaint ought not to have been dismissed only for
absence of the complainant or counsel. Although the impugned
order does state that the presence of the complainant was
necessary, it is not clear from record as to why the presence of the
complainant was absolutely necessary since the stage was not of
hearing but of return of warrant.
9] A substantial amount is involved and the amount is
ultimately of a Co-operative Society which is engaged in the
business of banking. It would be appropriate if the learned
Magistrate decides the complaint on merit.
10] The order impugned is set aside.
11] The Summary Criminal Case 711/2005 is restored to
file.
12] The complainant shall make every effort to ensure
that the accused is served within two months from today.
13] The learned Magistrate is directed to ensure that the
complaint is finally decided as expeditiously as possible and in any
event within four months from the date of service of the summons
or warrant on the accused.
14] The Registry to ensure that the record is sent back to
the learned Trial Court immediately.
15] The appeal is allowed.
JUDGE
NSN
