Gujarat High Court
Hdfc Bank Ltd. Thro Poa Holder ... vs State Of Gujarat on 7 September, 2022
Bench: Ashokkumar C. Joshi
R/CR.A/2282/2019 JUDGMENT DATED: 07/09/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL NO. 2282 of 2019
With
R/CRIMINAL APPEAL NO. 2284 of 2019
With
R/CRIMINAL APPEAL NO. 2285 of 2019
With
R/CRIMINAL APPEAL NO. 2286 of 2019
With
R/CRIMINAL APPEAL NO. 2299 of 2019
With
R/CRIMINAL APPEAL NO. 2300 of 2019
With
R/CRIMINAL APPEAL NO. 2301 of 2019
With
R/CRIMINAL APPEAL NO. 2304 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
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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 ?
==========================================================
HDFC BANK LTD. THRO POA HOLDER PIYUSH JASWANTLAL
Versus
STATE OF GUJARAT & 1 other(s)
==========================================================
Appearance:
MR D V KANSARA(7498) for the Appellant(s) No. 1
MR PM DAVE(263) for the Appellant(s) No. 1
MS. JIRGA ZAVERI, APP for the Opponent(s)/Respondent(s) No. 1
RULE NOT RECD BACK for the Opponent(s)/Respondent(s) No. 2
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Page 1 of 13
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R/CR.A/2282/2019 JUDGMENT DATED: 07/09/2022
CORAM:HONOURABLE DR. JUSTICE ASHOKKUMAR C. JOSHI
Date : 07/09/2022
ORAL JUDGMENT
1. The appellant has filed these criminal appeals under the
provisions of Section 378 of the Criminal Procedure Code,1973
(the Code) against the orders dated 09.03.2019 passed by the
learned 3rd Additional Chief Judicial Magistrate, Rajkot in
Criminal Case Nos. 19370 of 2009, 17324 of 2009, 11224 of
2012, 17334 of 2009, 6727 of 2010, 10979 of 2009, 17386 of
2009 and 1633 of 2013 whereby, the same were dismissed for
default, for want of non prosecution.
2. As the issue involved in all these appeals is common, the
same are being heard and decided together.
3. Brief facts of the case on hand are that the present
appellant, who is the original complainant, had filed several
complaints under the provisions of the Negotiable Instruments
Act, 1881 (NI Act) against the respondent No. 2 herein before
the learned Court below. Details of criminal cases and cheques
are as under:
Sr. Criminal Criminal Cheque Date Amt. Drawn
No. Appeal Case No. No. (Rs.) on
No.
1 2282 of 19370 of 426601 30.08.2009 10,401/- HDFC
2019 2009 Bank
2 2284 of 17324 of 252251 30.08.2009 4,935/- HDFC
2019 2009 Bank
3 2285 of 11224 of 300328 20.08.2011 8,274/- HDFC
2019 2012 Bank
R/CR.A/2282/2019 JUDGMENT DATED: 07/09/2022
Sr. Criminal Criminal Cheque Date Amt. Drawn
No. Appeal Case No. No. (Rs.) on
No.
4 2286 of 17334 of 252251 30.08.2009 4,935/- HDFC
2019 2009 Bank
5 2300 of 6727 of 198393 02.12.2009 2,020/- HDFC
2019 2010 198394 02.01.2010 2,020/- Bank
198395 02.02.2010 2,020/-
6 2299 of 10979 of 345743 03.07.2009 2,823/- HDFC
2019 2009 Bank
7 2304 of 17386 of 40382 30.08.2009 6,132/- HDFC
2019 2009 Bank
8 2301 of 1633 of 693833 05.01.2013 10,884/- HDFC
2019 2013 Bank
3.1 It is further the case that the said cases came to be
dismissed by invoking the provisions of Section 256(1) of the
Code as the complainant could not remain present before the
trial Court on the date fixed before the learned trial Court.
4. Heard learned advocate Mr. P. M. Dave for the appellant
and learned Additional Public Prosecutor Ms. Jirga Zaveri for
the respondent - State. So far as the rest respondents are
concerned, though served, nobody appears for the respondent
No. 2 in Criminal Appeal Nos. 2284 of 2019, 2285 of 2019,
2286 of 2019, 2299 of 2019, 2300 of 2019 and 2304 of 2019.
Rule is not received back in Criminal Appeal No. 2282 of 2019,
whereas, Rule has remained unserved in Criminal Appeal No.
2301 of 2019.
4.1 Learned advocate Mr. P. M. Dave for the appellant
submitted that the impugned orders dismissing the complaints
and thereby, acquitting the accused are bad, unjust, improper,
R/CR.A/2282/2019 JUDGMENT DATED: 07/09/2022
under misconception of law and facts, against the evidence
available on record and contrary to the settled legal position of
law. He also submitted that impugned orders are manifestly
erroneous and demonstrably unsustainable.
4.2 The learned advocate for the appellant submitted that
learned trial Court has grossly erred in coming to the
conclusion that the criminal cases are of the years 2009, 2010,
2012 and 2013 and are pending since long and despite several
opportunities granted to the present appellant, neither
appellant nor advocate for the appellant remained present for
proceeding further in the matters and that the appellant
appeared to have been not interested in proceedings with the
the complaints against the respondent No. 2. The learned
advocate further submitted that lastly, the cases were listed on
28.11.2014 before the learned trial Court and thereafter, they
were never listed till 2019 and suddenly, on 09.03.2019, the
matters were listed before the Lok Adalat, sans there being
any information, either to the complainant or his advocate and
without giving any single opportunity, the matters came to be
dismissed for default, for want of prosecution. He submitted
that the matters were listed almost after a period of five years
and the learned trial Court has dismissed the said complaints
with an absolute erroneous observation that the complainant is
not interested in proceeding with the complaints and the
complainant did not remain present. Accordingly, he requested
to quash and set aside the impugned orders and to remand
back the matters to decide afresh by the learned trial Court
concerned.
R/CR.A/2282/2019 JUDGMENT DATED: 07/09/2022
5. The Court has also heard the learned Additional Public
Prosecutor for the respondent - State.
6. Having heard the arguments advanced and considering
the facts and circumstances of the case on hand and also
perusing the impugned orders dated 09.03.2019 passed by
the learned trial Judge, it appears that the matters (criminal
cases) in question were listed before the Lok Adalat on the
appointed date, wherein, since neither the appellant nor the
advocate representing the appellant, could remain present, the
same came to be dismissed for default, for want of non-
prosecution. It is a settled principle of law that a party should
not remained unheard. It is also settled principle of law that
adjudication should be on merits rather than on mere
technicalities.
6.1 In this regard, it would be worthwhile to refer to a
decision of the Co-ordinate Bench of this Court in the case of
Harisinh Bhagwatsinh Sarvaiya v. State of Gujarat and
Ors., Manu/GJ/1042/2013, wherein, it is some important
paras read as under:
"10. In the above factual background, reference may be
made to the provisions of Sec. 256 of the Code, which
are reproduced herein below:
Sec. 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 herein above contained, acquit the
R/CR.A/2282/2019 JUDGMENT DATED: 07/09/2022
accused, unless for some reason he thinks it proper
to adjourn the hearing of the case to some other
day:
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-sec. (1) shall, so far as
may be, apply also to cases where the non-
appearance of the complainant is due to his death.
(Emphasis supplied)
11. Though, it is not disputed that the power to dismiss
a complaint for non-appearance of the complainant has
been conferred by Sec. 256 of the Code, at the same
time, this provision of law also confers discretion upon
the learned Magistrate to adjourn the hearing of the case
to some other day, if he thinks it proper to do so. The
approach to be adopted by the Court in each situation
would depend on the facts and circumstances of the
case. However, it would be a prudent exercise of power if
a balance is maintained, weighing the facts against the
interest of justice.
12. In this context, it would be appropriate to refer to
the decision in State of Gujarat v. Keshavram Shivram
Devmurari, 1977 GLR 524, wherein this Court has held as
below:
5. Under Sec. 256 of the Code, the Magistrate has no
doubt, power to acquit the accused if the
complainant does not appear on the day appointed
for the appearance of the accused or any day
subsequent thereto. This power has been conferred
on the Magistrate obviously for the ends of justice
and with a view to see that an accused person is not
subjected to any undue harassment. By way of
abundant caution, the very Section further provides
R/CR.A/2282/2019 JUDGMENT DATED: 07/09/2022
that it is not obligatory on the part of the Magistrate
to dismiss the complaint and he has been clothed
with the power to adjourn the hearing of the case to
some other day. The proviso annexed to this Section
further makes the position crystal clear. It lays down
that where the complainant is represented by a
pleader 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. The situation
as was before the learned Magistrate on the day in
question squarely fall within the proviso and still the
learned Magistrate has acted under the main part of
this Section. This is really unfortunate and it is hoped
that repetition of such instances would not be there
in future in the Court of this learned Magistrate or in
the Court of any other Magistrate. A copy of this
judgment is directed to be circulated to all the
Magistrates in the State.
(Emphasis supplied)
13. Further, in Ratanlal Gulabchand Gupta v. Sahara
Sev Gruh Udyog Bhandar (supra), this Court has held as
below:
3......In our this adversary system in the
country, there is nothing wrong of dependent
of a litigant who have chosen to engage an
Advocate in the matter on him. In the case of
this nature, on every date is fixed or the
proceedings are taken up, the complainant's
presence is not necessary, and more so, where
he has engaged an Advocate. It is unfortunate
that the Advocate was not sufficiently vigilant
in conducting the matter. But for this act of
the Advocate, why the poor complainant
should suffer. On 24-10-1996, the petitioner was
present in the Court and 24-12-1996 was the next
date fixed therein. On that date the matter was not
on the Board. The best course available in these
facts to the petitioner was to contact his Advocate,
and I do not find any perversity in the approach of
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the litigant to act in accordance with the advice of
the Counsel. I fail to see why the case of the
petitioner has not been accepted by both the Courts
below. A complainant, in his absence, may face
consequences of the dismissal of the complainant as
well as discharge of the accused. How absence of
the complainant in the criminal case is beneficial to
him; The absence of the complainant in the matter
results in dismissal of his complaint, he has to take
all the precautions and in this case petitioner did and
he engaged an Advocate. On 24-12-1996 the next
date was not fixed in case could not be known by the
petitioner and I do not find any abnormality in the
approach of the petitioner to rely upon the advice of
his Advocate. The Advocate has told him to inform
him the next date fixed in the matter. It is a different
matter that the Advocate has not informed the
petitioner the next date fixed in the matter. Though
Advocate is supposed to take all the care in the
matter of his client, but for his action, omission or
lapse, ultimately the poor litigant has to pay heavily.
It is not the case of the respondents that the
complainant petitioner has not engaged an Advocate
in this case. He had engaged the Advocate to avoid
any adverse order in the complaint for his absence
and to defend his case. It is unfortunate that the
Advocate did not remain present and for this act, he
has paid heavily. By keeping himself absent in the
proceedings the complainant is not benefited. The
trial Court as well as the Revisional Court has not
considered this aspect of the matter. They
proceeded with totally a technical approach despite
the fact that in series of decisions of this Court their
approach is not appreciated. Even for the time-being
it is accepted that the complainant was not present,
how far it is justified on the part of the trial Court to
dismiss the complaint where he engaged an
Advocate to represent him. It is the case where trial
Court has punished the petitioner for the inaction or
omission of the Advocate. The learned Court below
should not have given any premium to the accused
for his benefit on the ground of the absence of the
Advocate. In the facts of this case, the orders passed
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by both the Courts below cannot be allowed to
stand. A time comes where the trial Court as well as
the Sessions Court have to look into the matter with
justice-oriented approach........
... ... ... ...
In such matters, the approach of the Courts
should have been pragmatic and not pedantic.
If the matters are decided by use of the power
to dismiss the matter for default, it does not
give a good name to the institution. Where the
litigants approach the Court for redressal of
grievances, the cases are to be decided on
merits with a judicial approach rather than the
Courts exercising power to dismiss the matter
for default.
(Emphasis supplied)
14. In Mohd. Azeem v. A. Venkatesh, reported in
MANU/SC/1012/2002 : 2002 (7) SCC 726, the Supreme
Court has held as below:
3. From the contents of the impugned order of
the High Court, we have noticed that there was one
singular default in appearance on the part of the
complainant. The learned Judge of the High Court
observes that even on earlier dates in the course of
trial, the complainant failed to examine the
witnesses. But that could not be a ground to dismiss
his complaint for his appearance (sic. absence) on
one single day. The cause shown by the complainant
of his absence that he had wrongly noted the date,
has not been disbelieved. It should have been held
to be a valid ground for restoration of the complaint.
4. In our opinion, the learned Magistrate
and the High Court have adopted a very strict
and unjust attitude resulting in failure of
justice. In our opinion, the learned Magistrate
committed an error in acquitting the accused
only for absence of the complainant on one
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day and refusing to restore the complaint
when sufficient cause for the absence was
shown by the complainant.
(Emphasis supplied)
6.2 Moreover, in the decision in Manojbhai Jasmatbhai
Ramoliya v. State of Gujarat and Ors.,
MANU/GJ/0217 /2020, it is observed as under:
9. This Court has come across the judgment of the
Apex Court reported in MANU/SC/0894/1998 : AIR 1998
SC 596 dealing in case of Associated Cement Co. Ltd. Vs.
Keshavanand wherein scope and purpose of insertion of
Section 256 in the Code is discussed, which reads as
under:
"17. What was the purpose of including a provision
like S. 247 in the Code (or S. 256 in the new Code). It
affords some deterrence against dilatory tactics on
the part of a complainant who set the law in motion
through his complaint. An accused who is per force
to attend the Court on all posting days can be put
much harassment by a complainant if he does not
turn up to the Court on occasions when his presence
is necessary. The Section, therefore, affords a
protection to an accused against such tactics of the
complainant. But that does not mean if the
complainant is absent, Court has a duty to acquit the
accused in invitum.
18. Reading the Section in its entirety would
reveal that two constraints are imposed on the Court
for exercising the power under the Section. First is, if
the Court thinks that in a situation it is proper to
adjourn the hearing then the Magistrate shall not
acquit the accused. Second is, when the Magistrate
considers that personal attendance of the
complainant is not necessary on that day the
Magistrate has the power to dispense with his
attendance and proceed with the case. When the
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Court notices that the complainant is absent on a
particular day the Court must consider whether
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 steps of axing down the complainant
may not be a proper exercise of the power
envisaged in the section. The discretion must,
therefore, be exercised judicially and fairly
without impairing the cause of administration
of criminal justice."
7. In the aforesaid backdrop, if the record of the cases is
perused, it is revealed that initially, the complaints in question
came to be disposed of by different orders by the learned
Courts below for want of jurisdiction and thereafter, by orders
dated 27.12.2018 passed by the learned Chief Judicial
Magistrate, Rajkot, the same came to be re-registered with the
same numbers and transferred to the learned special Courts
under the NI Act. Further, a perusal of the Rojkam in the
proceedings concerned reveals that after such initial disposal
of the complaints for want of jurisdiction and restoration
thereof by orders dated 27.12.2018, the matters were listed
directly in the special sitting only i.e. on 09.03.2019 and in
between the same, as emerges from the rojkam, the same
were never listed. Further, for listing the same as such, no
notice appears to have been issued to the complainant. In the
circumstances, it might be that neither the complainant nor
the advocate for the complainant would be aware about the
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listing of the matters, more particularly, when the matters
came to be listed on the day when the impugned orders were
passed. Further, from the record it also appears that it is not
the case that the matters were listed from time to time and
either the complainant or his advocate had not remained
present.
8. Thus, in the overall facts and circumstances of the case,
in the considered opinion of this Court, the trial Court has
taken a very hyper-technical view of the matter and dismissed
the complaints, more particularly, when nobody was present
on behalf of the accused also, which is evident from the
rojkam. Accordingly, these appeals deserves to be allowed by
setting aside the impugned orders and remanding the same
back for hearing afresh. However, considering the fact that
after initial disposal of the cases for want of jurisdiction, the
complainant transpires to have not taken any steps, the Court
deems it proper to allow these appeals with some exemplary
costs.
9. For the forgoing reasons, the present appeals succeed
and are allowed in part. The impugned orders dated
09.03.2019 passed in the captioned appeals by the learned 3 rd
Additional Chief Judicial Magistrate, Rajkot in Criminal Case
Nos. 19370 of 2009, 17324 of 2009, 11224 of 2012, 17334 of
2009, 6727 of 2010, 10979 of 2009 and 17386 of 2009 and
1633 of 2013 are set aside. The cases are directed to be
restored to their original files for deciding the same afresh by
the concerned Court below, after giving due opportunities to
both the sides, in accordance with law, on merits and without
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being influenced by any orders.
9.1 Nonetheless, a cost of Rs.1,000/- (Rupees One
thousand only) in each case is imposed upon the appellant
- original complainant, which shall be deposited within a period
of two weeks before the District Legal Services Authority of the
concerned district.
9.2 Considering the age of the matters, the trial Court
concerned is directed to decide the cases as expeditiously as
possible but not later than six months from the date of receipt
of copy of this judgment and order. The parties are also
directed to extend full co-operation and shall not seek
unnecessary adjournments.
9.3 R&P, if received, be transmitted back to the learned trial
Court concerned forthwith.
(A. C. JOSHI,J)
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