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. 611/2011
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
2nd May, 2011 vide which the complaint filed by the
Appellant Bank under Section 138 NI Act was dismissed
under Section 256 (1) Cr.P.C and accused i.e. respondent
No.2 was 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 02.05.2011 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.11
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.11,00,000/-
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.603805017211 from the
appellant bank and in order to discharge his part
liability/debt accrued on account of dues, respondent No.2
issued and handed over a cheque bearing No.045796 dated
21.08.2009 for an amount of Rs.11,00,000/ drawn on
Allahabad Bank 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 'Insufficient Funds'.
Thereafter on 04.09.2009 a demand/legal notice was sent to
accused/respondent No.2 by the appellant bank through its
counsel thereby calling upon him to make payment of the
dishonoured cheque within 15 days from the receipt of legal
notice but despite that accused/respondents No.2 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(1) Cr.P.C, are contrary to the
proceedings recorded on 2nd May, 2011. The order of
learned Metropolitan Magistrate is extracted hereunder :-
"ICICI Bank Ltd. vs. Tarun Mehrotra'
CC No.25920/09
02.05.2011 (At 10:10 AM)
Present : None for complainant despite calls.
Accused in person with counsel Sh. Ajit Singh.
Be awaited.
sd/-
( VIPIN KHARB)
MM : DWARKA :
02.05.2011
At 11.15 AM
Present : None for complainant despite calls.
Accused in person with counsel Sh. Ajit Singh.
Be awaited.
sd/-
( VIPIN KHARB )
MM : DWARKA :
02.05.2011
At 12.55 PM
Present : None for complainant despite calls.
Accused in person with counsel Sh. Ajit Singh.
Perusal of the record reveals that on 07.05.2010
accused was present with his counsel and a cost of Rs.500/-
was imposed upon the complainant for his non-
appearance. On 28.10.2010 again accused was present
with his counsel but none appeared on behalf of
complainant despite repeated calls and a cost of
Rs.200/- was imposed upon the complainant. On
24.01.2011 case was listed for cross examination of AR
but AR of the complainant was absent and a cost of
Rs.1000/- was imposed upon the complainant. Again on
03.02.2011 case was listed for cross examination of AR
but AR of the complainant did not appear on that date
also and a cost of Rs.1500/- was imposed upon the
complainant for delaying the trial of case. On
08.04.2011 AR of the complainant was absent and ld.
Counsel for complainant sought some time to supply
the documents to the accused i.e. in compliance of
order dated 11.02.2011 and again the time was granted
subject to cost of Rs.1000/- and case was listed for
today ie. 02.05.2011. Today none has appeared on
behalf of complainant despite calls since morning. It is
appears that the complainant is not interested in
pursuing the present complaint.
Section 256 (1) Cr.P.C mandates that if the summons
has been issued on complaint and on the date appointed for
the appearance of the accused, or any day subsequent 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.
Considering the fact that the present case and the
conduct of the complainant, I do not find it proper to adjourn
the hearing of this case my (sic) further.
Therefore, the present complaint case is hereby
dismissed U/s 256(1) CrPC.
Accused stands acquitted.
Bail bond/surety bond, if any, are discharged.
File be consigned to record room.
sd/-
( VIPIN KHARB )
MM : DWARKA :
02.05.2011"
8. Perusal of the above proceedings reveal that neither
counsel for the appellant nor the authorized representative
of the appellant bank appeared before the learned Trial
Court despite enough accommodation being given on the
preceding dates i.e. 07.05.2000, 28.10.2000, 24.01.2011,
03.02.2011 and 08.04.2011. 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.11
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 02.05.2011
dismissing the complaint under Section 256(1) Cr.P.C. and
consequently acquitting the respondent is hereby set aside,
but at the same time the respondent No. No.2, 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 along with previous costs by
the appellant to the respondent No.2 on the date when
respondent No.2 puts 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. 611/2011 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
