Delhi High Court
Icici Bank Ltd. vs State & Anr. on 8 May, 2012
Author: Pratibha Rani
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON: 03rd May, 2012
PRONOUNCED ON: 08th May, 2012
+ CRL.L.P. 612/2011
ICICI BANK LTD. ........Appellant
Through: Mr. Karan Heera, Adv.,
proxy for Mr.Rakesh
Mukhija, Adv.
Versus
STATE & ANR. ...........Respondent
Through: Ms.Rajdipa Behura, APP for
State - R-1.
Mr.Akash Bhalla, Adv. for
R-2.
CORAM:
HON'BLE MS. JUSTICE PRATIBHA RANI
%
1. The present Criminal Leave to Appeal is filed by
appellant/complainant ICICI Bank impugning the order dated
01st February, 2011 vide which the complaint filed by the
Appellant Bank under Section 138 NI Act was dismissed
under Section 256 Cr.P.C and accused were acquitted.
2. The case of the appellant is that the
appellant/complainant was prosecuting the matter diligently
and appearing on each date. On the date 01.02.2011 when
the complaint was dismissed, the AR could not appear before
the learned Trial Court due to wrong noting of the date of
hearing of the said complaint by the counsel for the
complainant.
3. The impugned order has been challenged on the
ground that the learned M.M could have adjourned the
matter to some other date instead of dismissing the
complaint. In the circumstances, that the amount of Rs.25
lacs is involved and it would be a loss of public exchequer if
the complaint is not restored, it has been prayed that the
complaint be restored in the interest of justice and matter be
allowed to be proceeded in accordance with law.
4. Notice of the petition was given to State as well as
issued to the respondents No.2 and 3. Respondent No.3,
Director of the respondent No.2-company failed to appear
despite service of notice.
5. On 23th December, 2011, ld. Counsel for the appellant
appeared and submitted that total amount of Rs.25,00,000/-
is involved in this case and if this petition is not allowed, it
will be a loss to the exchequer of the public and that on
instructions from appellant bank, he is ready to pay the cost
for non-appearance of the appellant and for wasting the
public time. Thereafter the matter was re-notified for 3rd
February, 2012 and then for 3rd May, 2012. On 3rd May,
2012 despite the matter being passed over number of times,
learned counsel for the appellant did not appear till
afternoon and the proxy counsel Mr.Karan Heera, Adv.
though claimed that he was ready with the arguments, when
asked to argue, was not able to make any submissions.
6. The case of the appellant bank as pleaded in the
complaint under Sec. 138 Negotiable Instrument Act is that
the accused named in the complaint had availed loan facility
under the loan account No.603805016721 from the
appellant bank and in order to discharge its part
liability/debt accrued on account of dues, respondents No.2
and 3 issued and handed over a cheque bearing No.859111
dated 05.08.2009 for an amount of Rs.25,00,000/ drawn on
State Bank of Bikaner and Jaipur in favour of the
complainant/appellant bank. On presentation for
encashment, the said cheque was returned unpaid by the
drawer's bank alongwith return memo dated 26.08.2009 for
the reasons 'Account Close'. Thereafter on 07.09.2009 a
demand/legal notice was sent to accused/respondents No.2
and 3 by the appellant bank through its counsel thereby
calling upon them to make payment of the dishonoured
cheque within 15 days from the receipt of legal notice but
despite that accused/respondents No.2 and 3 failed to make
the payment. Hence, complaint under Sec.138 Negotiable
Instrument Act was filed.
7. The submissions made by learned counsel for the
petitioner that it was due to wrong noting of date that the AR
or counsel could not appear on the date when the complaint
was dismissed under Sec. 256 Cr.P.C, are contrary to the
proceedings recorded on 1st February, 2011. The order of
learned Metropolitan Magistrate is extracted hereunder :-
'ICICI Bank Ltd. vs. M/s Life Line Biotech Ltd. and Others
Present : None for the complainant.
Sh. N.K.Aggarwal, Ld. Counsel for accused with accused.
Be awaited.
Sd/-
( VIPIN KHARB)
MM : DWARKA : 01.02.2011
At 12.30 PM
Present : None for the complainant.
Sh. N.K.Aggarwal, Ld. Counsel for accused with accused.
Be awaited.
Sd/-
( VIPIN KHARB )
MM : DWARKA : 01.02.2011
At 2.30 PM
Present : None for the complainant.
Sh. N.K.Aggarwal, Ld. Counsel for accused with accused.
In the present case, the complainant has not appearing
for the last three dates of hearings and it appears that the
complainant is not interested in pursuing the present complaint
case.
On the last date of hearing, last and final opportunity was
provided to the complainant to put an appearance. However, none has
appeared even today on behalf of the complainant.
In the present case the summons have already been issued to
the accused and the complainant has failed to appear for last three
consecutive dates of hearings. Therefore, the present complaint case is
hereby dismissed under Section 256 Cr.P.C.
The accused stands acquitted of the present case.
Bail bond and surety bond is any, stands discharged.
File be consigned to record room.
Sd/-
( VIPIN KHARB)
MM : DWARKA : 01.02.2011'
8. Perusal of the above proceedings reveal that neither
counsel for the appellant nor the authorized representative
of the appellant bank had appeared before the learned Trial
Court for the preceding three dates despite the fact that last
and final opportunity was granted to the appellant to put in
appearance in the Court. Perusal of the proceedings of
learned Trial Court further reveal that the appellant had
been rather lackadaisical in its approach in prosecuting the
complaint. It is not only for the Court to consider that the
complainant would not be disinterested in prosecuting his
complaint because the cheque dishonoured was of Rs.25
lacs, it was for the appellant-bank also to ensure that its
authorized representative and counsel pursue their case(s)
vigilantly. The discipline can be enforced by the appellant
bank by effecting the recovery of the costs from the
defaulting officer/authorized representative.
9. The reason given in the appeal for non-appearance of
the complainant before the concerned Court on the date
when the complaint was dismissed under Section 256 Cr.P.C.
acquitting the respondent, does not seem to be convincing
ground for non-appearance on that date, as the conduct of
the appellant on the previous dates has also been duly
reflected in the proceedings.
10. However, considering the fact that vital rights of the
appellant bank are involved before the learned Trial Court
and principles of natural justice require that the appellant be
given an opportunity to prosecute its complaint on merits,
the complaint deserves to be restored.
11. In the result, the impugned order dated 01.02.2011
dismissing the complaint under Section 256 Cr.P.C. and
consequently acquitting the respondent is hereby set aside,
but at the same time the respondent, who had been
regularly appearing in the complaint case, is also required to
be reasonably compensated. In the facts and circumstances,
the amount of costs is quantified at Rs.10,000/- which shall
be paid by the appellant to the respondents on the date
when respondents put in appearance before the concerned
Court on restoration of the complaint. The complaint of the
appellant stands restored to its original stage. The Trial
Court is directed to decide the matter afresh on merits after
giving an opportunity to the appellant to lead evidence. The
appellant is directed to appear before the concerned MM on
15.05.2012. Thereafter, the Trial Court shall issue notice to
the respondents to enforce their presence in the Court.
12. CRL.L.P. 612/2011 is disposed of in the above terms.
Registry is directed to send a copy of this order to the Trial
Court for necessary compliance.
(PRATIBHA RANI)
JUDGE
MAY , 2012
dk/ks
