Gujarat High Court
State Bank Of India Thro Branch Manager vs State Of Gujarat on 1 February, 2024
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R/CR.MA/13664/2020 JUDGMENT DATED: 01/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION (FOR LEAVE TO APPEAL) NO. 13664
of 2020
With
R/CRIMINAL APPEAL NO. 264 of 2024
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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STATE BANK OF INDIA THRO BRANCH MANAGER
Versus
STATE OF GUJARAT
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Appearance:
MR RITURAJ M MEENA(3224) for the Applicant(s) No. 1
MS MONALI BHATT APP for the Respondent(s) No. 1
SERVED BY PUBLICATION IN NEWS for the Respondent(s) No. 2
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 01/02/2024
ORAL JUDGMENT
Order in Criminal Misc. Application
As this Court deems it fit to decide the case on merits, the
formal leave seeking to prefer an appeal is granted. The
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application for leave to prefer an appeal stands disposed of
accordingly.
Order in Criminal Appeal
1. This appeal is filed challenging the judgment and order
dated 27.01.2020 passed by the learned 2nd Additional Judicial
Magistrate First Class, Padra in Criminal Case No.707 of 2017
whereby, the learned trial Court has dismissed the complaint
for non-prosecution.
2. It is the case of the complainant that the complainant,
who is the financial institution, has sanctioned the term loan of
Rs.5,54,000/- for purchase of the car on 10.09.2015 to the
respondent - accused. The loan account was also opened in
the complainant branch being account no.352224768978.
After availing the loan facility, the respondent - accused
remained failed in making the payment of installment and on
raising the demand of the loan amount, the cheque of
Rs.5,44,237/- being cheque No.703930 dated 12.01.2017 of
the State Bank of India, Sun Pharma Road, Atladra branch was
given. On depositing the said cheque, it was returned with an
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endorsement of 'insufficient fund' and, therefore, the demand
notice under Section 138 of the Negotiable Instruments Act
was issued and thereafter, on following the procedure
prescribed under the Act, the private complaint came to be
filed. On filing the private complaint, summons came to be
issued on 15.02.2017, making it returnable on 15.03.2017. On
28.06.2017, the accused appeared to provide above paper, it
was adjourned. On 06.09.2017, again accused remained
absent therefore, case came to be adjourned from time to
time. On 28.06.2018, non-bailable warrant came tobe issued to
the accused. From the record of the learned trial Court, it
transpires that again, the respondent - accused remained
absent and, therefore, application for issuance of non-bailable
warrant was given, which was allowed on 11.10.2018. Though
the non-bailable warrant remained unexecuted till the date of
impugned order and because of non-remaining present by the
complainant and his advocate for four consecutive dates, the
learned trial Court has passed the judgment and order,
acquitting the respondent - accused by exercising the powers
under Section 256 of the Code of Criminal Procedure, which is
impugned before this Court.
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3. Heard learned advocate Mr.Rituraj Meena for the
complainant. Though, the notices were served through
publication in the newspaper on 22.08.2023, the respondent -
accused has chosen not to appear either in person or through
an advocate.
4. Learned advocate Mr.Meena submits that the
complainant is the bank and financial facility, which was
availed by the respondent - accused was not repaid and the
cheque which was issued, was dishonoured, therefore, the
learned advocate of the complainant has filed the private
complaint. The learned advocate submits that though the
complainant and his advocate remained present on almost all
occasions except four consecutive dates i.e. on 20.08.2019,
03.10.2019, 15.10.2019 and 28.11.2019, the learned trial
Court has dismissed the complaint for non-prosecution. The
learned advocate submits that for not remaining present, the
bank has issued the notice to the concerned advocate on
12.05.2020 and this being a public money which was remained
unpaid by the respondent - accused, due to the same, there
would be a loss to the public exchequer. The learned advocate
submits that it is true that the learned advocate for the
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complainant did not remain present however, at the same
time, the non-bailable warrant which was issued against the
respondent - accused, remained unexecuted. Therefore, for
not remaining present, no any change would have made in the
proceedings.
5. The learned advocate submits that the proceedings
under Section 138 is being a time barred litigation, by
dismissing the complaint, the complainant would be left
remediless. The learned advocate further submits that though
in the record, it is mentioned by the learned trial Court that the
notice to the complainant was issued however, the said fact is
not in the knowledge of the complainant as the officer, who is
authorized to file the complaint, has been changed
subsequently. The learned advocate submits that the real test
in the matters of Negotiable Instruments Act, where the
complainant is not remaining present, would always be a good
faith. It would be necessary to imply, as to whether the
complainant was remained absent for any good reason or not,
especially, when the accused did not appear in spite of the
summons or warrants issued by the learned trial Court. By
making the submissions, the learned advocate prays to quash
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the impugned order and to restore the complaint to its original
file and remand it back for a fresh consideration.
6. Considering the submissions and before entering into the
merits, this Court deems it fit to re-look the provisions of
Section 256 of the Code of Criminal Procedure, which is
reproduced hereinbelow:-
"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 com-
plainant does not appear, the Magistrate
shall, notwithstanding anything hereinbe-
fore contained, acquit the accused, un-
less 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 prosecu-
tion or where the Magistrate is of opinion
that the personal attendance of the com-
plainant is not necessary, the Magistrate
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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 nonappearance of the
complainant is due to his death."
7. Considering the above provisions, it transpires that
two constraints are imposed on the Court before exer-
cising the powers under Section 256 of the Code of
Criminal Procedure. First is if the Court thinks fit that in
a situation it is proper to adjourn the hearing, then the
Magistrate shall not acquit the accused. Second is that
when the Magistrate considers that the personal atten-
dance of the complainant is not necessary on that
day, the Magistrate has power to dispense with the at-
tendance and to proceed with the case. If the situa-
tion does not justify the case being adjourned, the
Court is free to dismiss the complaint and acquit the ac-
cused. But, if the presence of the complainant on that
day was quite unnecessary, then resorting to the step of
axing down the complaint may not be a proper exercise
of the powers envisaged in Section. The discretion,
therefore, must be exercised judicially and fairly without
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impairing the cause of administration of the criminal jus-
tice.
8. Considering the record which is the part of ap-
peal, it transpires that the impugned order was passed
on 27.01.2020 dismissing the complaint for non-prose-
cution on the ground of non-presence of the com-
plainant or his advocate. Prior to that day i.e. on
17.12.2019, the learned Presiding Officer was on leave.
Before that on 14.12.2019, there was no any presence
or absence recorded of the complainant or his advocate.
Prior to that i.e. on 28.11.2019, 15.10.2019, 03.10.2019
and 20.08.2019, on these four consecutive dates, ab-
sence of complainant and his advocate were recorded.
Before that date i.e. on 26.06.2019, the complainant has
given an application below Exh.15 for issuance of the
non-bailable warrant and to serve the same through the
publication. From the record, it further transpires that
on one occasion, the accused remained present i.e. on
28.06.2017 and for recording of the plea and to provide
papers, the case came to be adjourned. From that day
onwards, again, the accused remained absent and to se-
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cure the presence of the accused, application for is-
suance of the bailable/non-bailable warrant was given. It
transpires that the warrants remained unexecuted and
the accused remained absent till the date of the im-
pugned order.
9. This Court is of the view that the principle of
natural justice requires that due opportunity is to be
given to the parties to adduce or produce their respec-
tive evidence before the Court and the matter be de-
cided on its own merits. For an offence under Section
138 of the Negotiable Instruments Act, there is no rem-
edy available for the complainant while complaint came
to be dismissed for non-prosecution in view of the limi-
tation prescribed under the Act. Therefore, on dismiss-
ing the complaint, the complainant, who is the bank and
lent money to the respondent - accused, would be left
remediless and there would be loss to the public exche-
quer.
10. In view of the above, this Court deems it fit to
quash the impugned order. However, as it is the duty of
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the complainant to remain present after setting the
criminal law in motion and in failing which, appropriate
cost is required to be awarded.
11. In view of the above, this appeal is allowed. The
impugned judgment and order dated 27.01.2020 passed by
the learned 2nd Additional Judicial Magistrate First Class, Padra
in Criminal Case No.707 of 2017 is hereby quashed and set
aside. The Criminal Case No.707 of 2017 is ordered to
be restored to its original file and the learned trial Court
is directed to decide the complaint on its own merits af-
ter giving due opportunity to the respective parties to
lead their evidence.
12. The learned advocate for the complainant is di-
rected to deposit the cost of Rs.20,000/- with the Reg-
istry of this Court within 3 weeks from the date of the or-
der. On depositing the same, the Registry is directed to
remit the same in the account of Shishu Gruh, Paldi,
Ahmedabad by way of electronic mode.
(M. K. THAKKER,J)
Hitesh
