Gujarat High Court
Larsen And Turbo Ltd. Public Ltd. ... vs State Of Gujarat on 25 September, 2024
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R/CR.A/371/2019 JUDGMENT DATED: 25/09/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 371 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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LARSEN AND TURBO LTD. PUBLIC LTD. COMPANY THRO NIDHI
ANILKUMAR JAIN
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR JIGAR G GADHAVI(5613) for the Appellant(s) No. 1
MR YUVRAJ BRAHMBHATT APP for the Opponent(s)/Respondent(s) No. 1
SERVED BY AFFIX(N) for the Opponent(s)/Respondent(s) No. 2,3
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 25/09/2024
ORAL JUDGMENT
1. The appellant-original complainant has preferred
present Appeal under Section 378 of the Criminal
Procedure Code ("Cr.P.C." for short) against the judgment
and order of acquittal dated 25.7.2018 passed by the
learned Additional Chief Metropolitan Magistrate,
Negotiable Instruments Court No.28, Ahmedabad
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(hereinafter be referred to as "the trial Court") in
Criminal Case No. 2100 of 1999 (New Case No.3622 of
2008), whereby original accused was acquitted from the
charges levelled against him under Section 138 of the
Negotiable Instrument Act, 1881.
2. In present Appeal, the appellant original complainant
has prayed for following relief/s:-
"(A) Your Lordship may be pleased to allow present
appeal;
(B) Your Lordships may be pleased to quash and set
aside the impugned judgment and order dated 25.7.2018
in Criminal Case No. 2100 of 1999 (New Case No. 3622
of 2008) passed by learned Additional Chief
Metropolitan Magistrate, Negotiable Instruments Court
No. 28, Ahmedabad and further be pleased to convict
the respondent accused under the provisions of the
Negotiable Instruments Act, 1881 and further be
pleased to grant compensation in favour of the appellant
as provided under the Negotiable Instruments Act,
1881;
(C) To pass such other further reliefs which may be
deemed fit in the facts and circumstances of the case"
It is the case of the complainant-appellant that
3. The facts giving rise to present Appeal are that the
appellant herein is a company registered under
Companies Act, 1956. The respondent No.2 is a
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proprietorship firm run by respondent No.3, who is the
proprietor / owner of the said firm. The said firm had
purchased cement from the appellant company. As
regards the said transaction, the payment was required to
be made by the respondent accused.
3.1 Against the said legal debt, the respondent accused
issued a cheque for Rs.13,38,837/- bearing cheque
No.858059 dated 26.03.1999. The said cheque was
deposited by the appellant, which came to be dishonored.
The appellant issued statutory notice to the respondent
accused under the provisions of the Negotiable
Instruments Act, 1881 on 31.03.1999 which came to be
served on 07.04.1999. Since the payment was not made
by the respondent accused, the appellant was constrained
to file Criminal Case No.2100 of 1999 (New Case No.
3622 of 2008) before the Metropolitan Magistrate Court
at Ahmedabad. The said criminal case was filed under
Section 138 of the Negotiable Instruments Act, 1881.
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3.2 In the said criminal case, the plea was recorded and
summons came to be issued to the respondent accused.
The criminal case proceeded from time to time and was at
the stage of cross-examination. However, the application
for adjournment was made by the appellant original
complainant. It may be noted that the advocate for the
appellant company was replaced by another advocate
and, therefore, the case was pending at the stage of
cross-examination. The case was lastly listed on
25.07.2018. The learned Additional Chief Metropolitan
Magistrate, Negotiable Instruments Court No.28,
Ahmedabad was pleased to pass the judgment and order
on 25.07.2018, whereby, the criminal case came to be
dismissed under Section 256 of the Criminal Procedure
Code, 1973 and the respondent accused came to be
acquitted.
3.3 In view of the above facts, the appellant-original
complainant has filed present Appeal.
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4. Heard Mr. Jigar Gadhavi, learned Counsel appearing
for the appellant-original complainant and Mr. Yurvarj
Brahmbhatt, learned APP for the respondent State of
Gujarat. Though served by way of affixing notice,
respondent Nos. 2 and 3 are not present nor any advocate
is engaged on their behalf.
4.1 Mr. Jigar Gadhavi, learned Counsel for the appellant
has submitted that in present case, the acquittal is
recorded by the trial Court on the ground that the
advocate for the complainant as well as complainant were
not present. He has submitted that the said acquittal is
not recorded on merits of the case and the case was at
the stage of cross-examination and therefore the said
order is erroneous and illegal.
4.2 Mr. Jigar Gadhavi, learned Counsel for the appellant
has further submitted that the appellant had engaged
new lawyer in January 2017 and the new lawyer was to
file the appearance, but the same could not be filed by the
said new lawyer and therefore, no appearance was filed
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on behalf of the appellant. He has further submitted that
considering the rojkam, it cannot be said that the
complainant/appellant was having ill intention for not
prosecuting the case. He has submitted that the
respondent accused has committed serious offence under
the provisions of the Negotiable Instruments Act, 1881
and there was no malafide and ill intention on the part of
the complainant.
4.3 In view of the above submissions, Mr. Jigar Gadhavi,
learned Counsel for the appellant has submitted that
present Appeal may be allowed and the impugned order
of acquittal passed by the trial Court may be quashed and
set aside.
5. I have perused the material and relevant documents
placed on record. I have also gone through the record and
proceedings and the impugned order passed by the trial
Court.
6. It appears from the record that after filing of the
complaint, the matter was kept for cross-examination of
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the witness and for that the matter was adjourned for
almost two years. Thereafter, due to change of the officer
in the office, affidavit-in-chief was filed at Exh.29. Then on
15.12.2016, the Court has recorded that even after filing
of the affidavit-in-chief Exh.29, it was not proceeded
further for a period of more than 8 months and cross-
examination of the concerned witness was not done and
because of the absence of the complainant or the lawyer
before the concerned Court, the matter could not be
proceeded further.
7. Then again the matter was kept for cross-
examination of the concerned witness and thereafter, on
many occasions, the matter was listed before the
concerned trial Court and lastly after period of
approximately 18 years, since the matter was not
proceeded further and the same was kept pending at the
stage of cross-examination of the concerned witness, the
Court has passed impugned order dated 25.7.2018 in
Criminal Case No. 2100 of 1999 (New Case No.3622 of
2008) against which the present Appeal came to be filed.
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8. It is also relevant to note herein that after filing of
complaint on 14.5.1999, due to the stay granted by this
Court, the matter was not proceeded further upto 2002
and the matter could not be proceeded, even thereafter
upto 2008, till date, the matter was transferred to the
concerned Court, the matter was not proceeded further.
9. Even from the bare perusal of the rojkam filed by the
appellant, it appears that after filing of the complaint in
1999 and after order passed by the Court in 2002, upto
2018 the matter was pending and almost 20 years have
been passed and only in 2015 an application was filed by
the present appellant before the Court stating that
because of the transfer of the earlier officer, he wanted to
file affidavit-in-chief of the subsequent officer, who was in
charge of the earlier officer and that affidavit-in-chief
came to be filed only in 2015 i.e. almost after 16 years of
filing of the complaint. Even thereafter, also the matter is
listed time and again and the Court has recorded the
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same in the rojkam and in 2018 ultimately, the trial Court
has passed impugned order.
10. At this stage, Mr. Gadhavi, learned Counsel for the
appellant has pointed that in the similar set of facts, the
appellant has filed another complaint in 2000 which was
registered as Criminal Case No. 2317 of 2000 (New Case
No. 3618 of 2008) and the same was dismissed by the
trial Court vide order dated 25.7.2008 and the said order
came to be challenged before this Court, where the
Coordinate Bench of this Court in 2019, remanded back
the matter to the concerned trial Court by imposing
appropriate cost upon the complainant. In that view of
the matter, he requests the Court to remand the matter
before the concerned trial Court by imposing appropriate
cost upon the appellant herein.
11. It appears that herein present case, even after filing
of present Appeal the same was kept pending only at the
stage of serving of summons. After publishing public
notice in the newspaper, this Court had issued a bailable
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warrant against the concerned respondent and after filing
of this Appeal almost five years have already passed and
therefore, the order passed by the Coordinate Bench of
this Court on 10.5.2019 in Criminal Appeal No. 366 of
2019 will not come to rescue the complainant in any
manner since the facts stated in the cited case are
different from the facts of the present case and therefore,
the request made by learned Counsel for the appellant is
hereby rejected.
12. It is also relevant to note herein that even after filing
of the present Appeal in 2019 before this Court, almost 5
years have been passed and it is at the stage of serving of
summons and warrant against the concerned
respondent.
13. In the judgment of the Hon'ble Apex Court in case of
S. Rama Krishna vs. S. Rami Reddy (Dead) by His
LRs and others reported in (2005) 5 SCC 535 the
Court has clarified that in the event when the
complainant did not remain present, it is presumed that
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he is not interested to proceed the matter. It is also well
settled that the right of speedy trial of the accused is also
now well established and herein present case, since 1999
the concerned respondent against, whom the present
complaint is filed, is under the hanging sword. One after
another proceedings initiated by the complainant and
under such circumstances, this Court is of the opinion
that it is nothing but an eye wash and the present Appeal
deserves to be dismissed.
14. For the foregoing reasons, present Appeal is hereby
dismissed. Record and proceedings be sent back to the
concerned trial Court.
15. The bailable warrant issued by the Coordinate
Bench of this Court against the concerned respondent-
original accused stands cancelled.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
