Rajeshkumar Vishwasnath Tiwari ... vs State Of Gujarat
2023 Latest Caselaw 4073 Guj

    R/CR.A/1845/2022                                CAV JUDGMENT DATED: 06/06/2023




                IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                       R/CRIMINAL APPEAL NO. 1845 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MS. JUSTICE NISHA M. THAKORE

==========================================================

1 Whether Reporters of Local Papers may be allowed to YES see the judgment ?

2      To be referred to the Reporter or not ?                             YES

3      Whether their Lordships wish to see the fair copy of the            NO
       judgment ?

4      Whether this case involves a substantial question of law            NO

as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== RAJESHKUMAR VISHWASNATH TIWARI PROP. OF SUPER SERVICE POINT THRO POA PRAVINKUMAR JAGUBHAI RATHOD Versus STATE OF GUJARAT ========================================================== Appearance:

MS ZEEL N RAVAL(10774) for the Appellant(s) No. 1 MR APURVA R KAPADIA(5012) for the Opponent(s)/Respondent(s) No. 2 MS. C.M. SHAH, APP for the Opponent(s)/Respondent(s) No. 1 ==========================================================

CORAM:HONOURABLE MS. JUSTICE NISHA M. THAKORE

Date : 06/06/2023

CAV JUDGMENT

1. This appeal under Section 378 of Cr.P.C. arises out of the

judgment and order dated 08.07.2022 passed by learned Additional

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Chief Metropolitan Magistrate, N.I. Act Court No.31, Ahmedabad

below Exh.1 in Criminal Case No.3214 of 2015. By the said judgment

and order, the learned Magistrate has proceeded to exercise the

powers conferred under Section 256 of the Code of Criminal

Procedure by recording the absence of complainant, thus, acquitting

the respondent No.2-original accused for the offence punishable

under Section 138 of the N.I. Act.

2. Heard Ms. Zeel Raval, learned advocate on record for the

appellant, Mr. Apurva Kapadia, learned advocate on record for the

respondent No.2 and Ms. C.M. Shah, learned APP appearing for the

respondent-State.

3. Brief facts leading the present case in nutshell are as under:

3.1 That appellant is the complainant who has instituted a

complaint under the provisions of Section 138 of the N.I. Act against

the respondent No.2 herein. The case of the appellant is to the effect

that the appellant and the respondent No.2 entered into an

agreement on 07.10.2013 for the purpose of operation and

maintenance of bus-depot and LED's -LCD's located at the bus depot

of GSRTC. That as per the said agreement, the appellant used to raise

bills and the respondent No.2 used to make payments by way of

cheque or cash.

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3.2 That during October-2013 to April-2014, the bill was raised for

an amount of Rs.48,04,528/- from which an amount of Rs.21,10,506/-

was received and an amount of Rs.26,94,022/- was outstanding. That

the respondent No.2 in furtherance to make the outstanding payment

had given cheques being (I) Cheque No.084005 amounting to

Rs.4,00,000/- dated 05.04.2014, (ii) Cheque No.084006 amounting to

Rs.5,00,000/- dated 10.04.2014 and (iii) Cheque No.084017 amounting

to Rs.1,20,000/- dated 28.06.2014.

3.3 That aforesaid cheque Nos.1 and 2 were given before and the

cheque No.3 was given on 28.06.2014 and on the said day, the

respondent No.2 asked the appellant to deposit all the three cheques

with an assurance amount would be realized. While depositing the

said cheques, third cheque being Cheque No.084017 was issued in the

name of self and hence, the appellant on 28.06.2014 went to deposit

the same to withdraw the amount but the same was not cleared as the

"funds were insufficient". Thereafter, both the remaining i.e. aforesaid

cheque Nos.1 and 2 were also deposited and both were not cleared,

and therefore, the appellant herein issued legal notice for raising

prosecution under Section 138 of the N.I. Act., to which, the present

respondent No.2 chose not to reply.

3.4 After recording the verification, summons were issued to

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respondent No.2 herein and the said complaint, which was earlier

registered as (Old) Criminal Case No.756 of 2014 before the Court of

Ld. Judicial Magistrate First Class, Unjha was thereafter, transferred

by way of an order under Exh.1 dated 15.12.2015 and was numbered

as (New) Criminal Case No.3214 of 2015 before the learned Additional

Chief Metropolitan Magistrate, Ahmedabad vide order dated

29.12.2015, process was issued. The learned Magistrate having

noticed absence of appellant, proceeded to exercise power under

Section 256 of Cr.P.C. thereby.

3.5 The respondent No.2 could not have been acquitted solely on

the ground that the present appellant has not taken enough steps to

proceed with the matter and only on the ground that the appellant

had remained not present during the proceedings on certain dates,

the present respondent No.2 was acquitted. The respondent No.2 has

been acquitted only on such ground, which is not tenable. That court

below has not considered implication of presumption under Section

118(a) and 139 of the N.I. Act.

3.6 That trial court had issued notice for appearance and the

respondent No.2, for the first time, had appeared on 06.07.2017 and

plea was recorded. Thereafter, the respondent No.2 had approached

the Hon'ble High Court by way of filing quashing petition being

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Criminal Misc. Application No.20679 of 2017, wherein vide order dated

22.08.2017, the Hon'ble High Court was pleased to issue notice and

permitted the respondent No.2 to seek an adjournment before the

learned trial court.

3.7 That thereafter on 28.09.2017, 05.02.2018 and 23.04.2018, time

and again, the present respondent No.2 had sought adjournments on

the basis of the aforesaid order passed by the Hon'ble High Court. On

25.05.2018, the present appellant gave an application for issuance of

warrant wherein the lawyer representing respondent No.2 again

asked for an adjournment and the learned trial court granted last

adjournment.

3.8 On 22.10.2021, the respondent No.2 submitted an application

under Section 256 of Cr.P.C. praying for rejection of complaint on the

ground of non- appearance of the present appellant. On the next date

i.e. 28.12.2021, on absence of accused, an application was given by the

present appellant for issuance of warrant as well as status report of

the litigation that was pending before the Hon'ble High Court but the

learned trial court rejected such application for warrant as the

respondent No.2 had appeared. The learned Judge did not pass any

other with regard to production of status report. Thereafter, on

15.06.2022, due to some reasons, the appellant could not remain

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present. Hence, the learned Magistrate issued notice to appellant. It

is contended by the appellant that neither any notice was issued nor

served to the appellant and thereafter, on the next date i.e.

08.07.2022, the impugned order of acquittal was passed.

3.9 The learned Magistrate acquitted the respondent No.2 only on

the ground that the present appellant has not taken any steps to

secure the presence of the respondent No.2. The learned Magistrate

has on erroneous ground that the present appellant has not remained

present for long time has acquitted the present respondent No.2.

Therefore, being aggrieved and dissatisfied with the impugned

judgment and order, this appeal under Section 378 of Cr.P.C. is

preferred at the instance of original complainant.

4. Considering the submissions made by learned advocates

appearing for the respective parties, this Court vide order dated

17.01.2023, had granted leave to appeal recording prima facie case.

The hearing of the appeal was expedited and the matter was

thereafter notified for final hearing.

5. At the outset, Ms. Zeel Raval, learned advocate on record for

the appellant, has submitted that considering the fact that the

impugned order was passed by the learned Magistrate under Section

256 of Cr.P.C., because of absence of the complainant, she urged for

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restoration of the original complaint. She had invited attention of this

Court to the impugned order, more particularly, the reasons recorded

wherein the learned Magistrate had recorded findings that no

effective steps were taken by the complainant to proceed with the

trial. She has placed reliance upon the rojkam of the criminal case. She

has submitted that criminal case was registered pursuant to the

complaint, which was presented on 16.12.2015. Upon verification of

the complainant, the learned Magistrate had issued summons upon

the respondent-accused vide order dated 29.12.2015. Thereafter, the

bailable warrant was issued upon the accused and the matter was kept

for further hearing on 01.03.2016.

5.1 She has further submitted that plea of the accused was

recorded on 06.07.2017, which was almost after period of two years.

She has emphatically submitted that in the entry dated 15.06.2022, it

is mentioned that notice to be issued upon the complainant, neither

the notice was issued nor the notice is served upon the complainant.

She therefore, submitted that in absence of such notice, the

complainant was not aware about the next date of hearing i.e.

08.07.2022.

5.2 She has further invited of this Court to the impugned order and

has submitted that the learned trial court committed error by

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recording incorrect fact that notice was duly served upon

complainant, however, complainant had chosen not to appear before

the Court. She therefore, urged this Court that basis on which, the

impugned order passed itself is erroneous.

5.3 She has further invited attention of this Court to the fact that

quashing petition has been filed by the respondent-accused

challenging the proceedings against the accused on the ground that

company is not joined as party respondent and the complaint is not

maintainable in the eye of law.

5.4 She has further submitted that since the parties were conscious

of the complaint itself being challenged and the same pending

consideration before this Court. On earlier occasion, parties had

jointly prayed for time before the learned Magistrate. She has further

submitted that in fact the accused had applied for adjournment on

various occasions, which is evident from the record itself. She has

further submitted that even on bare reading of the rojkam, it indicates

that the adjournment was sought at the instance of the original

accused. She has further submitted on 28.12.2021, the complainant

itself had, in fact, had applied for issuance of bailable warrant upon

the accused and it is not that the complainant had always prayed for

adjournment. She therefore, submitted that the present appeal be

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allowed and the matter be remanded back and the original complaint

may be restored.

6. On the other hand, aforesaid submissions made by learned

advocate on record for the appellant-complainant, has been

vehemently objected by Mr. Apurva R. Kapadia, learned advocate on

record for the respondent-accused.

6.1 At the outset, he raised preliminary objection with regard to

maintainability of the complaint in the form, which was filed before

the learned Magistrate. He has submitted that in case if the court is

taking liberal approach and restoring the complaint then the

alternative submissions with regard to maintainability of the

complaint may be taken into consideration. As according to him, the

complaint is not maintainable in absence of necessary party being

joined as respondent-accused, the restoration of the complaint would

be a futile exercise. He therefore, urged this Court to consider his

submissions as regards maintainability of the complaint as well.

7. Countering the arguments, Ms. Zeel Raval, learned advocate on

record for the appellant, had objected to such prayer of learned

advocate for the respondent-accused and has submitted that the

aforesaid ground being not agitated before the learned Magistrate

and the quashing petition on the aforesaid issue is pending

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consideration before this Court, the same may not be permitted to be

raised at this stage in appeal, where the court is examining the limited

issue with regard to the manner in which, the learned Magistrate has

proceeded to dismiss the complaint under Section 256 of Cr.P.C.

However, she has submitted that she may be permitted to make

submission to counter the submission of learned advocate for the

respondent-accused on the issue of maintainability also.

8. Mr. Apurva R. Kapadia, learned advocate on record for the

respondent-accused, at the outset, address the Court on the issue of

manner in which, the learned Magistrate has passed the impugned

order of dismissal of complaint under Section 256 of Cr.P.C. He has

fervently submitted that this was not the first occasion for the learned

Magistrate of noticing the absence of the complainant. Nor is the case

where learned Magistrate has at first instance proceeded to pass the

order of dismissal of complaint. He once again, invited attention of

this court to the impugned order. He has also placed reliance upon the

copy of rojkam and pointed out ten such instances where the

complainant had constantly remained absent before the learned

Magistrate. He has further submitted that the court may take notice

of the fact that the original complaint is of year-2015. The recording of

plea had been delayed as it was for the complainant to see that

bailable warrant is served upon the accused. He has further submitted

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that after recording of plea of accused, which had taken place on

06.07.2017, the matter was listed for recording of evidence of the

complainant. Since June-2017, till the impugned order came to be

passed by the learned Magistrate, the complainant for some reasons

has chosen not to offer himself in the witness box. He has further

submitted that the learned Magistrate has given sufficient

opportunity as can be noticed from the rojkam, which was almost for

period of 7 years.

8.1 At this stage, he has invited attention of this Court to the

Section 143 of the N.I. Act and has submitted that the proceedings

arising out of N.I. Act, are to be conducted as summary trial. In such

circumstances, no fault can be attributed to the learned Magistrate to

proceed with the exercise of powers under Section 256 of Cr.P.C.

8.2 In support of his submissions, he has relied upon few decisions

of the Hon'ble Apex Court as well as High Court:

(I) In the case of S. Rama Krishna vs. S. Rami Reddy (D) by his Lrs

& Ors. reported in 2008(2) G.L.H. 434, wherein the Hon'ble Apex

Court quashed and set aside the judgment of the High Court in appeal

observing that no precedent or reason has been assigned by the High

Court while opining that the lis between the parties should be decided

on merits rather than the technicalities. He has further submitted that

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the Hon'ble Apex Court has reiterated the principle that speedy trial is

a fundamental right of an accused. The Hon'ble Supreme Court has

further held that the orders passed by the competent court of law as

also the provisions of Code of Criminal Procedure must be construed

having regards to the constitutional scheme and the legal principles in

mind.

He has submitted that this was a case where the matter had

remained pending for more than five years as against that in the

present case, the matter had remained pending for more than 7 years.

(ii) In the case of Champalal Kapoorchand Jain vs. Navyug Cloth

Stores 344/a reported in 2019 (0) AIJ-MH 183261, wherein the

Bombay High Court while examining the ingredients of Section 256 at

the criminal appeal stage held that Section 256 mandates that if the

complainant does not remain present on the appointed date after

summons has been issued on complainant and unless attendance of

complainant has been dispensed with, the learned Magistrate shall

acquit the accused.

8.3 He therefore, submitted that once the notice issued upon

complainant calling upon him to remain present on the next date, in

absence of dispensation of the presence of complainant, the learned

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Magistrate is empowered under Section 256 of Cr.P.C. to proceed with

the disposal of the complaint thereby acquitting the accused.

8.4 He therefore, submitted that no error can be attributed to the

learned Magistrate who has proceeded to pass order under Section

256 of Cr.P.C. recording into the acquittal of respondent-accused.

8.5 Learned advocate Mr. Kapadia has addressed this Court on the

issue the maintainability of the complaint in the form it was presented

before the trial court. He has invited attention of this Court to the

cause title of the complaint and submitted that the name of the

company appears first and below it, it is mentioned that "on and

behalf of-Director Bharat Dave". Below the name, appears the address

of the complainant. He therefore, submitted that this clearly goes to

suggest that company has not been joined as party accused. Only the

director of the company has been made accused. At this stage, he

referred to and relied upon Section 141 of the N.I. Act and submitted

that on plain reading of Section 141, it clearly transpires that the

company is treated as the principal offender and the authorise officer

acts under the authority of the Company i.e. through the resolution

passed by the Board of Dirctor and who has been signatory to the

disputed cheque, is required to be joined as party respondent-

accused.

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8.6 In support of his submission, he has relied upon the decision of

the larger Bench of the Hon'ble Apex Court in the case of Aneeta

Hada vs. Godfather Travels and Tours Private Limited and allied

matters reported in (2012) 5 SCC 661, and has submitted that after

detailed analysis of the provisions of the N.I. Act and considering the

provisions of the Company Act, the Court has ultimately held that

criminal liability on account of dishonor of cheque primarily falls on

the drayee company and is extended to the officers of the company

pursuant to the conditions incorporated in Section 141 are satisfied.

He has further submitted that the court ultimately held that there has

to be a strict observance of the provisions regard being to the

legislative impediment because it deals with penal provisions and the

penalty is not to be imposed affecting the rights of the persons

whether juristic entities or individuals, unless they are arrayed as

accused.

8.7 He has further submitted that the aforesaid decision has been

referred to and follow in the recent decision of the Hon'ble Supreme

Court in the case of Pawan Kumar Goel vs. State of Uttar Pradesh

reported in 2022 (11) JT 362. In the said case, the Court was

considering two main issues which include that whether the director

of a company would be liable for prosecution under Section 138 of the

N.I. Act without the company being arrayed as accused. The Court

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after relying upon the three Judges Bench decision in the case of

S.M.S. Pharmaceuticals Ltd. Vs. Neeta Bhalla & another reported in

2005 (8) SCC 89 and State of Haryana vs. Brij Lal Mittal & Ors.

reported in 1998 (5) SCC 343, confirmed the order passed by the High

Court, quashing the complaint including the summons order by relying

upon the decision of the Hon'ble Supreme Court in case of Aneeta

Hada (supra).

8.8 He therefore, submitted that absence of the company being

arraigned separately as accused in the cause title goes to the very

root of the maintainability of the complaint for non-compliance of the

essential conditions incorporated under Section 141 of the N.I. Act.

8.9 Secondly, he has submitted that the company has been striked

off. He has placed on record the form issued by the Registrar of

Companies, R.O.C., Ahmedabad on 14.08.2018, whereby notice came

to be published on 14.08.2018 notifying the companies appended in

table-A, who have been struck out of from the Register of Companies

and the companies are treated as dissolved by making reference to

the aforesaid documents. He has further submitted that the

respondent company- Dhavani Informatics Solution Private Limited

stood strike off from the Register of Companies with effect from

06.08.2018. In such circumstances, the complaint even if assumed to

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have been filed against the company does not survive.

8.10 Lastly, learned advocate Mr. Kapadia has submitted that the

scope of powers of this Court in appeal under Section 378, more

particularly, of the Code is in case of acquittal is limited, it is a settled

legal position that when two views are possible then the appellate

court should not interfere in appeal in order of acquittal of the

accused. In light of the aforesaid settled position, he has submitted

that the complainant having been failed to proceed with the trial

almost for 7 years, the approach of the learned Magistrate cannot be

faulted with in absence of no perverse finding being found. He

therefore, urged this Court to dismiss the present appeal.

9. Learned advocate Ms. Zeel Raval had once again addressed the

Court in response to the aforesaid submissions to learned advocate

for the respondent-accused. She has submitted that company is

arraigned as party as it transpires from the cause title of the original

complaint the name of the company is mentioned first and it is the

company who is represented by the Director-Bharat Dave. She

therefore, submitted that the decisions relied upon by the learned

advocate for the respondent-accused would not apply in the facts of

the present case. She urged this Court to grant opportunity to the

complainant of being heard on merits on the aspect of maintainability

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before the trial court by restoring the matter back to its original file.

She has placed on record the copy of such report dated 28.07.2017

wherein the name of the accused Bharatkumar Vishnuprasad Dave

appears as the director of company by virtue of Article of Association.

She has submitted that the said accused is in-charge as a director since

his date of appointment, which is 09.09.2008. She has also relied upon

the copy of the judgment dated 21.12.2021 passed in Civil Misc.

Application No.111 of 2019 to contend that the application was

moved by the accused Bharatkumar Vishnuprasad Dave against the

present complainant for setting aside ex parte decree, which was

passed in respect of same transaction. In civil proceedings under

Order 37 Rule 4 of Code of Civil Procedure, by which, the said

applicant was directed to pay Rs.24,94,022/- with interest at the rate

of 18% per annum mainly on the ground that the said applicant was

one of the directors of Dhavani Informatics Solution Private Limited.

She therefore, submitted that the applicant being the director in-

charge of the affairs of the company is liable on behalf of the

company.

10. No further arguments were made by learned advocates

appearing for the respective parties.

11. Having heard learned advocates appearing for the respective

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parties at length, the Court is called upon to decide question of law as

to in the given set of facts, whether the company was joined as

accused in the criminal complaint and if no, whether the complaint

would be maintainable in the eye of law? Then the next question

which arise for consideration is whether the learned Magistrate, in the

given set of facts, committed any error in passing the impugned order

of dismissing the complaint for non- prosecution by resorting to

Section 256 of the Code of Criminal Procedure?

12. The controversy as to whether any person who has been

mentioned in Section 141(1) and 141(2) of the Act can be prosecuted

without the company being impleaded as an accused is concerned, the

same has been answered by the Hon'ble Supreme Court in the case of

Aneeta Hada (supra) . The relevant observations of the aforesaid

decision are as under:

13. Eventually, his Lordship referred to the allegations in the complaint which are to the effect that the two accused persons, namely, Anil Hada and Aneeta Hada, used to purchase the air tickets for their clients and they had purchased for the Company from time to time and issued cheques. The accused No. 1 used to conduct the business of the Company and she also used to purchase the tickets from the complainant. On the aforesaid foundation the learned Judge opined that the basic complaint is against the two accused persons in their individual capacity and they might be purchasing tickets for their travelling company. Being of

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this view, he dismissed both the appeals.

14. We have heard Mr. Muneesh Malhotra, learned counsel for the appellant in Criminal Appeal Nos. 838 and 842 of 2008, Dr. Abhishek Manu Singhvi, learned senior counsel for the appellant in Criminal Appeal No. 1483 of 2009 and for the respondent in Criminal Appeal No. 1484 of 2009, Mr. Sidharth Luthra, learned senior counsel for the appellant in Criminal Appeal No. 1484 of 2009, Mr. Rajesh Harnal, learned counsel for the respondents in Criminal Appeal Nos. 838 of 2008 and 842 of 2008, Mr. P.P. Malhotra, learned Additional Solicitor General for the respondent in Criminal Appeal No. 1483 of 2009 and Mr. Arun Mohan, learned Amicus Curiae.

15. The learned senior counsel appearing for the appellants, in support of the proponement that the impleadment of the company is a categorical imperative to maintain a prosecution against the directors, various signatories and other categories of officers, have canvassed as follows: -

(a) The language of Section 141 of the Act being absolutely plain and clear, a finding has to be returned that the company has committed the offence and such a finding cannot be recorded unless the company is before the court, more so, when it enjoys the status of a separate legal entity. That apart, the liability of the individual as per the provision is vicarious and such culpability arises, ipso facto and ipso jure, from

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the fact that the individual occupies a decision making position in the corporate entity. It is patent that unless the company, the principal entity, is prosecuted as an accused, the subsidiary entity, the individual, cannot be held liable, for the language used in the provision makes the company the principal offender.

(b) The essence of vicarious liability is inextricably intertwined with the liability of the principal offender. If both are treated separately, it would amount to causing violence to the language employed in the provision.

(c) It is a fundamental principle of criminal law that a penal provision must receive strict construction. The deeming fiction has to be applied in its complete sense to have the full effect as the use of the language in the provision really ostracizes or gets away with the concepts like "identification", "attribution" and lifting the corporate veil and, in fact, puts the directors and the officers responsible in a deemed concept compartment on certain guided parameters.

(d) The company, as per Section 141 of the Act, is the principal offender and when it is in existence, its non-impleadment will create an incurable dent in the prosecution and further, if any punishment is inflicted or an unfavourable finding is recorded, it would affect the

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reputation of the company which is not countenanced in law.

(e) The decision in Sheoratan Agarwal and Another (supra) has incorrectly distinguished the decision in C.V. Parekh (supra) and has also misconstrued the ratio laid down therein. That apart, in the said decision, a part of the provision contained in Section 10(1) of the Essential Commodities Act, 1955 (for brevity 'the 1955 Act') has been altogether omitted as a consequence of which a patent mistake has occurred.

(f) The decision in Anil Hada (supra) has not appreciated in proper perspective the ratio decidendi in C.V. Parekh and further there is an inherent contradiction in the judgment inasmuch as at one point, it has been stated that "the payee can succeed in the case only if he succeeds in showing that the offence was actually committed by the company" but at another place, it has been ruled that "the accused can show that the company has not committed the offence, though such company is not made an accused".

(g) The terms used "as well as the company" in Section 141(1) of the Act cannot mean that no offence need be committed by the company to attract the vicarious liability of the officers in-

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charge of the management of the company because the first condition precedent is commission of the offence by a person which is the company.

16. The learned counsel for the respondents, resisting the submissions propounded by the learned counsel for the appellants, have urged the following contentions: -

(i) If the interpretation placed by the appellant is accepted, the scheme, aims, objects and the purpose of the legislature would be defeated inasmuch as Chapter XVII of the Act as introduced by the Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 1988)is to promote efficacy of banking to ensure that in commercial or contractual transactions, cheques are not dishonoured and the credibility in transacting business through cheques is maintained. The Chapter has been inserted with the object of promoting and inculcating faith in the efficacy of the banking system and its operations and giving credibility to negotiable instruments in business transactions. The fundamental purpose is to discourage people from not honouring their commitments and punish unscrupulous persons who purport to discharge their liability by issuing cheques without really intending to do so. If the legislative intendment is appositely understood and appreciated, the interpretation of the

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various provisions of the Act is to be made in favour of the paying-complainant. To bolster the aforesaid submission, reliance has been placed on Electronics Trade and Technology Development Corporation Ltd., Secunderabad v. Indian Technologists and Engineers (Electronics) (P) Ltd. and another,C.C. Alavi Haji v. Palapetty Mohammedand Another andVinay Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd.

(ii) The reliance placed by the appellants on the decision in C.V. Parekh (supra) is absolutely misconceived. In the first case, the Court was considering the question of acquittal or conviction of the accused persons after considering the entire evidence led by the parties before the trial court but in the present case, the challenge has been at the threshold where summons have been issued. That apart, the 1955 Act and the Act in question operate in different fields having different legislative intents, objects and purposes and further deal with offences of various nature. In the case at hand, the new dimensions of economic growth development and revolutionary changes and the frequent commercial transactions by use of cheques are to be taken note of. Further,Section 141 creates liability for punishment of offences under Section 138and it is a deemed liability whereas the criminal liability created for an offence under Section 7of the 1955 Act is not a

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deemed offence.

(iii) After the amendment of the Act, the unscrupulous drawers had endeavoured hard to seek many an escape route to avoid the criminal liability but this Court with appropriate interpretative process has discouraged the innovative pleas of such accused persons who had issued cheques as the purpose is to eradicate mischief in the commercial world. To buttress the aforesaid submission, heavy reliance has been placed on D. Vinod Shivappa v. Nanda Belliappa, M/s. Modi Cement Ltd. v. Shri Kuchil Kumar Nandi, Goaplast Pvt. Shri Ltd. v. Chico Ursula D'souza and Anr., NEPC Micon Ltd and Ors. v. Magma Leasing Ltd., Dalmia Cement (Bharat) Ltd. v. M/s. Galaxy Traders and Agencies Ltdand Ors., I.C.D.C. Ltd. v. Beena Shabeer and Anr. and S.V. Majumdar and others v. Gujarat Fertilizers Co. Ltd and Anr.

(iv) The company being a legal entity acts through its directors or other authorized officers and it authorizes its directors or other officers to sign and issue cheques and intimate the bank to honour the cheques if signed by such persons. The legislature in its wisdom has used the word 'drawer' in Sections 7 and 138 of the Act but not "an account holder". A notice issued to the Managing Director of the company who has signed the cheques is liable for the offence and a

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signatory of a cheque is clearly responsible for the incriminating act and, therefore, a complaint under Section 138 of the Act against the director or authorized signatory of the cheque is maintainable. In this regard, reliance has been placed upon M/s Bilakchand Gyanchand Co. v. A. Chinnaswami, Rajneesh Aggarwal v. Amit J.

Bhalla, SMS Pharmaceuticals Ltd. v. Neeta Bhalla (supra), Anil Hada v. Indian Acrylic Ltd. (supra) and R. Rajgopal v. S.S. Venkat.

(v) There is no postulate under Section 141 of the Act that the director or the signatory of the cheque cannot be separately prosecuted unless the company is arrayed as an accused. The company, as is well-known, acts through its directors or authorised officers and they cannot seek an escape route by seeking quashment of the proceedings under Section 482 of the Code of Criminal Procedure solely on the foundation that the company has not been impleaded as an accused. The words "as well as the company"

assumes significance inasmuch as the deemed liability includes both the company and the officers in-charge and hence prosecution can exclusively be maintained against the directors or officers in-charge depending on the averments made in the complaint petition.

17. The gravamen of the controversy is whether any person who has been mentioned in Sections 141(1) and

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141(2)of the Act can be prosecuted without the company being impleaded as an accused. To appreciate the controversy, certain provisions need to be referred to.

18. Section 138 of the Act, which deals with the ingredients of the offence for dishonour of the cheque and the consequent non-payment of the amount due thereon, reads as follows: -

"138. Dishonour of cheque for insufficiency, etc, of funds in the account - Where any cheque drawn by a person on account maintained by him with a banker for the payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an arrangement made with the bank, such person shall be deemed to have committed an offence and shall without prejudice to any other provisions of this Act, be punished with imprisonment for a term which may be extended to two years, or with a fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless -

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(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier,

(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice, in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid, and

(c) the drawer of such cheque fails to make the payment of said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice."

19. The main part of the provision can be segregated into three compartments, namely, (i) the cheque is drawn by a person, (ii) the cheque drawn on an account maintained by him with the banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of a debt or other liability, is returned unpaid, either because the amount of money standing to the credit of that account is insufficient to honour the cheque or it exceeds the amount arranged to be paid from that account by an arrangement made with the

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bank and (iii) such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of the Act, be punished with imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of the cheque or with both. The proviso to the said section postulates under what circumstances the section shall not apply. In the case at hand, we are not concerned with the said aspect. It will not be out of place to state that the main part of the provision deals with the basic ingredients and the proviso deals with certain circumstances and lays certain conditions where it will not be applicable. The emphasis has been laid on the factum that the cheque has to be drawn by a person on the account maintained by him and he must have issued the cheque in discharge of any debt or other liability.

20. Section 7 of the Act defines 'drawer' to mean the maker of a bill of exchange or a cheque. An authorised signatory of a company becomes a drawer as he has been authorised to do so in respect of the account maintained by the company.

21. At this juncture, we may refer to Section 141 which deals with offences by companies. As the spine of the controversy rests on the said provision, it is reproduced below: -

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"141. Offences by companies. - (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly;

Provided that nothing contained in this sub- section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:

Provided further that where a person is nominated as a Director of a Company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.

(2) Notwithstanding anything contained in sub- section (1), where any offence under this Act, has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to,

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any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly."

22. On a reading of the said provision, it is plain as day that if a person who commits offence under Section 138of the Act is a company, the company as well as every person in charge of and responsible to the company for the conduct of business of the company at the time of commission of offence is deemed to be guilty of the offence. The first proviso carves out under what circumstances the criminal liability would not be fastened. Sub-section (2) enlarges the criminal liability by incorporating the concepts of connivance, negligence and consent that engulfs many categories of officers. It is worth noting that in both the provisions, there is a 'deemed' concept of criminal liability.

23. Section 139 of the Act creates a presumption in favour of the holder. The said provision has to be read in conjunction with Section 118(a) which occurs in Chapter XIII of the Act that deals with special rules of evidence. Section 140 stipulates the defence which may not be allowed in a prosecution under Section 138 of the Act. Thus, there is a deemed fiction in relation to criminal liability, presumption in favour of the holder, and denial of a defence in respect of certain aspects.

24. Section 141 uses the term 'person' and refers it to a company. There is no trace of doubt that the company is a

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juristic person. The concept of corporate criminal liability is attracted to a corporation and company and it is so luminescent from the language employed under Section 141 of the Act. It is apposite to note that the present enactment is one where the company itself and certain categories of officers in certain circumstances are deemed to be guilty of the offence.

25. In Halsbury's Laws of England, Volume 11(1), in paragraph 35, it has been laid down that in general, a corporation is in the same position in relation to criminal liability as a natural person and may be convicted of common law and statutory offences including those requiring mens rea.

26. In 19 Corpus Juris Secundum, in paragraph 1358, while dealing with liability in respect of criminal prosecution, it has been stated that a corporation shall be liable for criminal prosecution for crimes punishable with fine; in certain jurisdictions, a corporation cannot be convicted except as specifically provided by statute.

27. In H.L. Bolton (Engineering) Co. Ltd. vs. T.J. Graham & Sons Ltd.[30] Lord Denning, while dealing with the liability of a company, in his inimitable style, has expressed that a company may in many ways be likened to a human body. It has a brain and nerve centre which controls what it does. It also has hands which hold the tools and act in accordance with directions from the centre. Some of the people in the company are mere servants and agents who are nothing more than hands to do the work and cannot be

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said to represent the mind or will. Others are directors and managers who represent the directing mind and will of the company, and control what it does. The state of mind of these managers is the state of mind of the company and is treated by the law as such. In certain cases, where the law requires personal fault as a condition of liability in tort, the fault of the manager will be the personal fault of the company. The learned Law Lord referred to Lord Haldane's speech in Lennard's Carrying Co. Ltd. v. Asiatic Petroleum Co. Ltd.[31]. Elaborating further, he has observed that in criminal law, in cases where the law requires a guilty mind as a condition of a criminal offence, the guilty mind of the directors or the managers will render the company itself guilty.

28. It may be appropriate at this stage to notice the observations made by MacNaghten, J. in Director of Public Prosecutions v. Kent and Sussex Contractors Ltd.[32] : (AC p.

156.) "A body corporate is a "person" to whom, amongst the various attributes it may have, there should be imputed the attribute of a mind capable of knowing and forming an intention - indeed it is much too late in the day to suggest the contrary. It can only know or form an intention through its human agents, but circumstance may be such that the knowledge of the agent must be imputed to the body corporate. Counsel for the respondents says that, although a body corporate may be capable of having an intention, it is not capable of

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having a criminal intention. In this particular case the intention was the intention to deceive. If, as in this case, the responsible agent of a body corporate puts forward a document knowing it to be false and intending that it should deceive. I apprehend, according to the authorities that Viscount Caldecote, L.C.J., has cited, his knowledge and intention must be imputed to the body corporate."

29. In this regard, it is profitable to refer to the decision in Iridium India Telecom Ltd. v. Motorola Inc and Ors. wherein it has been held that in all jurisdictions across the world governed by the rule of law, companies and corporate houses can no longer claim immunity from criminal prosecution on the ground that they are not capable of possessing the necessary mens rea for commission of criminal offences. It has been observed that the legal position in England and United States has now been crystallized to leave no manner of doubt that the corporation would be liable for crimes of intent.

30. In the said decision, the two-Judge Bench has observed thus:-(Motorola Inc. case 34, SCC P. 98, Para 59)

"The courts in England have emphatically rejected the notion that a body corporate could not commit a criminal offence which was an outcome of an act of will needing a particular state of mind. The aforesaid notion has been rejected by adopting the doctrine of attribution

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and imputation. In other words, the criminal intent of the "alter ego" of the company/body corporate i.e. the person or group of persons that guide the business of the company, would be imputed to the corporation."

31. In Standard Charted Bank (supra), the majority has laid down the view that "there is no dispute that a company is liable to be prosecuted and punished for criminal offences. Although there are earlier authorities to the fact that the corporation cannot commit a crime, the generally accepted modern rule is that a corporation may be subject to indictment and other criminal process although the criminal act may be committed through its agent".

It has also been observed that there is no immunity to the companies from prosecution merely because the prosecution is in respect of offences for which the punishment is mandatory imprisonment and fine.

32. We have referred to the aforesaid authorities to highlight that the company can have criminal liability and further, if a group of persons that guide the business of the companies have the criminal intent, that would be imputed to the body corporate. In this backdrop, Section 141 of the Act has to be understood. The said provision clearly stipulates that when a person which is a company commits an offence, then certain categories of persons in charge as well as the company would be deemed to be liable for the offences under Section 138. Thus, the statutory intendment is absolutely plain. As is perceptible, the provision makes the

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functionaries and the companies to be liable and that is by deeming fiction. A deeming fiction has its own signification.

33. In this context, we may refer with profit to the observations made by Lord Justice James in Ex Parte Walton, In re, Levy,which is as follows:

"When a statute enacts that something shall be deemed to have been done, which, in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to."

34. Lord Asquith, in East end Dwellings Co. Ltd. v. Finsbury Borough Council, had expressed his opinion as follows:

"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents, which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it.... The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."

35. In The Bengal Immunity Co. Ltd. v. State of Bihar and others, the majority in the Constitution Bench have opined that legal fictions are created only for some definite purpose.

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36. In Hira H. Advani Etc. v. State of Maharashtra, while dealing with a proceeding under the Customs Act, especially sub-section (4) of Section171-A wherein an enquiry by the custom authority is referred to, and the language employed therein, namely, "to be deemed to be a judicial proceeding within the meaning of Sections193 and228 of the Indian Penal Code", it has been opined as follows:

"It was argued that the Legislature might well have used the word "deemed" in Sub-section (4) of Section171 not in the first of the above senses but in the second, if not the third. In our view the meaning to be attached to the word "deemed" must depend upon the context in which it is used."

37. In State of Tamil Nadu v. Arooran Sugars Ltd., the Constitution Bench, while dealing with the deeming provision in a statute, ruled that the role of a provision in a statute creating legal fiction is well settled. Reference was made to The Chief Inspector of Mines and another v. Lala Karam Chand Thapar Etc., J.K. Cotton Spinning and Weaving Mills Ltd. and anr. v. Union of India and others, M. Venugopal v. Divisional Manager, Life Insurance Corporation of India and Harish Tandon v. Addl. District Magistrate, Allahabad and eventually, it was held that when a statute creates a legal fiction saying that something shall be deemed to have been done which in fact and truth has not been done, the Court has to examine and ascertain as to for what purpose and between which persons such a statutory fiction is to be resorted to and thereafter, the

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courts have to give full effect to such a statutory fiction and it has to be carried to its logical conclusion.

38. From the aforesaid pronouncements, the principle that can be culled out is that it is the bounden duty of the court to ascertain for what purpose the legal fiction has been created. It is also the duty of the court to imagine the fiction with all real consequences and instances unless prohibited from doing so. That apart, the use of the term 'deemed' has to be read in its context and further the fullest logical purpose and import are to be understood. It is because in modern legislation, the term 'deemed' has been used for manifold purposes. The object of the legislature has to be kept in mind.

39. The word 'deemed' used in Section 141 of the Act applies to the company and the persons responsible for the acts of the company. It crystallizes the corporate criminal liability and vicarious liability of a person who is in charge of the company. What averments should be required to make a person vicariously liable has been dealt with in SMS Pharmaceuticals Ltd. (supra). In the said case, it has been opined that the criminal liability on account of dishonour of cheque primarily falls on the drawee company and is extended to the officers of the company and as there is a specific provision extending the liability to the officers, the conditions incorporated in Section 141 are to be satisfied.

40. It has been ruled as follow:- (S.M.S.

Pharmaceuticals Ltd. Case 6, SCC pp.95-96, para 4) "It primarily falls on the drawer company and is extended to officers of the company. The normal rule in the cases

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involving criminal liability is against vicarious liability, that is, no one is to be held criminally liable for an act of another. This normal rule is, however, subject to exception on account of specific provision being made in the statutes extending liability to others. Section 141 of the Act is an instance of specific provision which in case an offence under Section 138 is committed by a company, extends criminal liability for dishonor of a cheque to officers of the company. Section 141 contains conditions which have to be satisfied before the liability can be extended to officers of a company. Since the provision creates criminal liability, the conditions have to be strictly complied with. The conditions are intended to ensure that a person who is sought to be made vicariously liable for an offence of which the principal accused is the company, had a role to play in relation to the incriminating act and further that such a person should know what is attributed to him to make him liable."

41. After so stating, it has been further held that while analyzing Section 141 of the Act, it will be seen that it operates in cases where an offence under Section 138 is committed by a company. In paragraph 18 of the judgment, it has been clearly held as follows: -

"There is almost unanimous judicial opinion that necessary averments ought to be contained in a complaint before a person can be subjected to criminal process. A liability under Section 141 of the Act is sought to be fastened vicariously on a person connected with a Company, the principal accused being the company itself. It is a departure from the rule in criminal law against vicarious liability."

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42. Presently, we shall deal with the ratio laid down in the case of C.V. Parekh (supra). In the said case, a three- Judge Bench was interpreting Section 10 of the 1955 Act. The respondents, C.V. Parekh and another, were active participants in the management of the company. The trial court had convicted them on the ground the goods were disposed of at a price higher than the control price by Vallabhadas Thacker with the aid of Kamdar and the same could not have taken place without the knowledge of the partners of the firm. The High Court set aside the order of conviction on the ground that there was no material on the basis of which a finding could be recorded that the respondents knew about the disposal by Kamdar and Vallabhadas Thacker.

43. A contention was raised before this Court on behalf of the State of Madras that the conviction could be made on the basis of Section 10 of the 1955 Act. The three- Judge Bench repelled the contention by stating thus: -

"Learned counsel for the appellant, however, sought conviction of the two respondents on the basis of Section 10 of the Essential Commodities Act under which, if the person contravening an order made under Section 3 (which covers an order under the Iron and Steel Control Order, 1956), is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly. It was urged

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that the two respondents were in charge of, and were responsible to, the Company for the conduct of the business of the Company and, consequently, they must be held responsible for the sale and for thus contravening the provisions of clause (5) of the Iron and Steel Control Order. This argument cannot be accepted, because it ignores the first condition for the applicability of Section 10 to the effect that the person contravening the order must be a company itself. In the present case, there is no finding either by the Magistrate or by the High Court that the sale in contravention of clause (5) of the Iron and Steel Control Order was made by the Company. In fact, the Company was not charged with the offence at all. The liability of the persons in charge of the Company only arises when the contravention is by the Company itself. Since, in this case, there is no evidence and no finding that the Company contravened clause (5) of the Iron and Steel Control Order, the two respondents could not be held responsible. The actual contravention was by Kamdar and Vallabhadas Thacker and any contravention by them would not fasten responsibility on the respondents."

The aforesaid paragraph clearly lays down that the first condition is that the company should be held to be liable; a charge has to be framed; a finding has to be recorded, and the liability of the persons in charge of the company only arises when the contravention is by the company itself.

44. The said decision has been distinguished in the case of Sheoratan Agarwal and another (supra). The two-Judge Bench in the said case referred to Section 10 of the 1955 Act and opined that the company alone may be prosecuted

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or the person in charge only may be prosecuted since there is no statutory compulsion that the person in charge or an officer of the company may not be prosecuted unless he be ranged alongside the company itself. The two-Judge Bench further laid down that Section 10 of the 1955 Act indicates the persons who may be prosecuted where the contravention is made by the company but it does not lay down any condition that the person in-charge or an officer of the company may not be separately prosecuted if the company itself is not prosecuted.

13. In view of aforesaid legal position and in the instance case, if

one closely examines the cause title of the complaint, it transpires

from the record that the name of the company appears first and

below it, it is mentioned on behalf of the-director "Bharat Dave". Thus,

I am of the of the view that the company is arraigned as accused, who

is represented through its director Bharat Dave. On further

examination of the record, the disputed cheque is placed on record

vide Exh.33. The drayee of the cheque appears as under:

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14. Thus, the accused name Bharat Dave is not only mentioned in

cause title in his capacity as director of the company but is also joined

as authorized signatory of the disputed cheque.

15. In view of the legal position laid down by the Hon'ble Supreme

Court in the case of Aneeta Hada (supra) and the plain reading of

provisions of Sections 138, 139 and 141 of the N.I. Act, it is settled

position that in case of commission of offence by company, the

express condition of company being joined is imperative to attract the

vicarious liability of other category of officers appearing in the

aforesaid provisions.

16. In the present case, the company is represented by the Director

and at the same time, he is also the authorize signatory to the

disputed cheque. In my opinion, the complaint in the present form is

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maintainable, the condition precedent to join company as accused is

fulfilled.

17. So far as the issue of the striking out of the company is

concerned, this Court had occasion to go through the copy of the

extract of the notice published by the Registrar of the Companies

whereby the name of the respondent-company has been striked off

with effect from 06.10.2018 which is pending the complaint. In my

opinion, though the company might have been strike out of from the

list of register of companies, however, the same would not relieve the

company from its liability. For the foregoing reasons, I am of the view

that the complaint in the present format is not defective and is held

maintainable.

18. Now coming to the issue of exercise of powers by the

Magistrate under Section 256 of Cr.P.C., in the given set of facts is

concerned, indisputably the original complaint relates to year-2015,

the plea of the accused was delayed on account of corrective steps to

be taken by the complainant for effecting the service of summons

upon the accused. It transpires from the rojkam that the accused was

served with the bailable warrant only in the year-2017, the accused

had appeared before the trial court on 06.07.2017, when his plea was

recorded. It is true that initially the applications were moved by the

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accused seeking exemption, which was accepted by the court.

However, thereafter, the court had as a last chance, accommodated

the accused and the matter was fixed for cross-examination of the

complainant. Thus, since 25.05.2018, the matter had been fixed for

cross-examination of the complainant. As rightly pointed out by

learned advocate Mr. Kapadia for the respondent-accused, it has

transpired on record that more than 10 adjournments were sought for

by the complainant and the complainant had failed to offer himself for

cross-examination before the learned Magistrate. In such process, four

precious years have been invested by the learned Magistrate at the

stage of cross-examination of the complainant. In my opinion,

sufficient opportunities were given to the complainant to offer for

cross-examination. It was a crucial stage for proceeding with the trial

and in absence of the complainant having appeared before the trial

court for cross-examination, the court could not proceed with hearing

of the matter. In such circumstances, when the matter was listed for

cross-examination on 15.06.2022, the Court had recorded to issue

notice to the complainant and the matter was adjourned to

08.07.2022.

19. In view of the aforesaid facts, if one look at the provisions of

Section 256(1) Cr.P.C. of the Code of Criminal Procedure, it mandates

the Magistrate to acquit the accused unless for some reason, he thinks

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it proper to adjourn the hearing of the case, if an exceptional course is

to be adopted, it must be spelt out, the discretion is conferred upon

the Magistrate, to exercise such power with great care and caution. As

rightly pointed out by learned advocate Mr. Kapadia for the

respondent-accused that the court cannot allow a case to remain

pending for indefinite period as it is evident from the rojkam itself.

The matter, which is otherwise to be decided as a summary trial, had

remained pending for almost 7 years out to which, four years were

invested by the trial court at the stage of cross-examination of the

complainant.

20. So far as the contention raised by learned advocate Ms. Zeel

Raval appearing for the appellant with regard to non-receipt of notice

from the concerned court informing about the next date of hearing

being fixed on 08.07.2022 is concerned, the learned Magistrate has

noted in the impugned order that notice was issued upon the

complainant and the complainant had failed to appear for conducting

the proceedings on 08.07.2022. The aforesaid contention of learned

advocate Ms. Zeel Raval was verified from the record and proceedings.

It transpires from the rojkam that on 15.06.2022, after recording the

absence of the complainant as well as the learned advocate

representing the complainant, the learned Magistrate had directed

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issuance of notice upon the complainant. In the relevant entry of

15.06.2022 in the rojkam it is mentioned as "F.a. No.", which means in

Vernucular language as "Fariyadi ne Notice i.e. notice to complainant".

However, on close scrutiny of the original record, neither the copy of

notice dated 15.06.2022 nor any report of service of such notice upon

complainant is found. May that be the fact remains that after

tendering application for issuance of warrant on 20.12.2021, the trial

court had proceeded to issue summons upon respondent-accused on

30.04.2022 and the next date was fixed on 15.06.2022. The learned

advocate representing the complainant was expected to pursue the

proceedings. Once the accused had been called upon and in response

to such warrant the learned advocate for the accused had appeared

before the court, in my opinion, no fault can be found with the

approach of learned Magistrate in proceeding with the trial, once the

matter was at large for evidence of the complainant.

21. For the foregoing reasons, the present appeal fails. The

impugned judgment and order dated 08.07.2022 passed by learned

Additional Chief Metropolitan Magistrate, N.I. Act Court No.31,

Ahmedabad below Exh.1 in Criminal Case No.3214 of 2015, is hereby

confirmed.

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22. Bailable warrant issued by this Court stands cancelled. Record

and proceeding be sent back to the concerned court forthwith.

(NISHA M. THAKORE,J) SUYASH SRIVASTAVA