Hdfc Bank Ltd. Thro Anil Sankhla ... vs State Of Gujarat
2023 Latest Caselaw 8047 Guj

                                                                                NEUTRAL CITATION




     R/CR.A/2486/2023                           JUDGMENT DATED: 03/11/2023

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              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 2486 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE M. K. THAKKER

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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 ?

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    HDFC BANK LTD. THRO ANIL SANKHLA S/O BRIJMOHAN SANKHLA
                             Versus
                       STATE OF GUJARAT
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Appearance:
MR HARNISH V DARJI(3705) for the Appellant(s) No. 1
for the Opponent(s)/Respondent(s) No. 2
MR PRATIK Y JASANI(5325) for the Opponent(s)/Respondent(s) No. 3
MR BHARGAV PANDYA APP for the Opponent(s)/Respondent(s) No. 1
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    CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER

                            Date : 03/11/2023

                           ORAL JUDGMENT

Rule. Mr.Pratik Jasani, learned advocate for Respondent No.3 and Mr.Bhargav Pandya, learned APP for Respondent - State waive service of rule on behalf of respective parties.

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1. This appeal is filed challenging the judgment and order

passed by learned Special Court, Negotiable Instruments Act,

Rajkot dated 17.4.2023 in Criminal Case No.4184 of 2017 by

which the complaint came to be dismissed.

2. It is the case of the complainant that complainant-Bank had

given the finance by way of term loan to the respondent-accused

and for which the agreement came to be executed being

Agreement No.81118120 with the respondent-accused.

Respondent had issued the cheque bearing No.465695 on

5.11.2016 for the amount of Rs.50 lacs for the repayment of the

loan. On depositing the same, the cheque was dishonored on the

ground of account closed on 3.2.2017. After following procedure

prescribed under the Act, the private complaint came to be filed

being Criminal Case No.4184 of 2017 before the Competent

Court under Section 138 read with Section 142 of the Negotiable

Instruments Act.

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3. After following the procedure, summons came to be issued

vide an order dated 20.4.2017 by the learned Court. On the day

when the impugned order was passed, the application was given

by learned advocate for the complainant that authorized officer

by whom the complaint is filed is to be changed, therefore, an

adjournment was sought in the interest of justice. Learned Court

by observing that on 11th October, 2017, the plea was recorded

and thereafter the case is at the stage of evidence of the

complainant but the complainant is not remaining present for

cross examination and due to same, case could not be

proceeded further and therefore, application for seeking an

adjournment was rejected on 17.4.2023. On the very day, further

separate order was passed by the learned Court dismissing the

case for non prosecution and declaring the acquittal of the

respondent-accused, which is impugned before this Court.

4. Heard the learned advocates for the parties.

5. Learned advocate, Mr.Darji, for the applicant submitted

that learned Court below had erred in observing that despite

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repeated call out, neither the complainant nor advocate was

remained present. Learned advocate submitted that application

was given for an adjournment which was dismissed by the

learned Court below on 17.4.2023. Therefore, the observation

with regard to non remaining present of the learned advocate is

not true and correct as learned Court himself recorded in the

order with regard to the presence of the learned advocate for the

complainant. Mr.Darji, learned advocate for the appellant

submits that originally the complaint was instituted by

authorized officer, namely, Mr.Sagar Kotecha, who resigned from

the Company on 22nd October, 2019, thereafter, Mr. Anil

Sankhana was given the charge of Authorized Officer and Senior

Manager of the Bank and therefore, the name of Mr. Sankhela is

to be replaced. However, without giving the opportunity, learned

Court below had passed judgment and order of acquittal on the

ground of non remaining present of the complainant. Therefore,

learned advocate submitted that it deserves to be quashed and

set aside.

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6. On the other hand, learned advocate for the respondent

No.2 submitted that in the impugned order, the observation is

made by learned advocate that because at the stage of cross

examination of the complainant neither the advocate nor the

complainant is remaining present before the Court and time was

sought which was rejected. Therefore, learned Court below

rightly dismissed the complaint by exercising the power under

Section 256 of the Code of Criminal Procedure and acquitted the

respondent - accused from the charges and same is not required

to be interfered with and the appeal deserves to be dismissed.

7. Considering the arguments submitted by learned advocates

for the respective parties, Section 256 of the Code of Criminal

Procedure, 1973 is required to be relooked again.

Section 256 in The Code Of Criminal Procedure, 1973

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 hereinbefore contained, acquit the accused, unless for some reason he thinks it proper to adjourn the hearing of the case to some other day:

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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- section (1) shall, so far as may be, apply also to cases where the non- appearance of the complainant is due to his death.

8. This Court has gone through the Record and proceedings of

the case wherein, it transpires from the Rojkam that prior to the

date when the impugned order was passed on 3.4.2023, learned

Court was on leave. Before that on 18.3.2023, the exemption

application was given by the accused and adjournment application

was given by the complainant. Even prior to that also, the same

situation is also there and case was adjourned for number of

occasions either on the application of the accused or on the

application of the complainant. It is undisputed fact that case is at

the stage of cross examination. However, due to the change of

authorized officer, the same could not be concluded and therefore

the application was given seeking adjournment to replace the

complainant.

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9. The principal of natural justice is required that due

opportunity be given to the parties to adduce or produce the

respective evidence before the Court and matter be decided on

its own merits. Simultaneously, as due to default of the

complainant, the respondent-accused has to come before this

Court, therefore, the appropriate cost is required to be awarded

to the accused while quashing and setting aside the impugned

order. Therefore, this Court is of the view that impugned order

deserves to be quashed and matter is required to be restored to

its original file. The appellant is directed to deposit the cost of

Rs.15,000/- with the Registry of this Court within a period of 2

(two) weeks from today and same shall be disbursed to the

respondent-accused after due verification. It is needless to say

that the parties shall not seek adjournment unless warranted due

to the emergency and would see that the case is concluded

without further delay.

10. In view of the above, impugned order passed by the

learned learned Special Court, Negotiable Instruments Act,

Rajkot dated 17.4.2023 in Criminal Case No.4184 of 2017 is

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quashed and set aside. Criminal Case is restored to its original

file. Rule made absolute.

Records and proceedings be sent back forthwith.

(M. K. THAKKER,J) ASHISH M. GADHIYA