Gujarat High Court
Bank Of Baroda Through Its Authorized ... vs State Of Gujarat on 27 February, 2025
NEUTRAL CITATION
R/CR.A/1214/2023 ORDER DATED: 27/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1214 of 2023
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BANK OF BARODA THROUGH ITS AUTHORIZED SIGNATIORY MISHRA
VIJAY M.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
BHASKAR SHARMA(9209) for the Appellant(s) No. 1
MR ANKIT SHAH(6371) for the Appellant(s) No. 1
DELETED for the Opponent(s)/Respondent(s) No. 4
PRITESH M SHAH(8405) for the Opponent(s)/Respondent(s) No. 2,3
MS. JIRGA JHAVERI, APP for the Opponent(s)/Respondent(s) No. 1
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CORAM:HONOURABLE MS. JUSTICE S.V. PINTO
Date : 27/02/2025
ORAL ORDER
1. The present appeal is filed by the appellant - original complainant
under Section 378(4) of the Code of Criminal Procedure, 1973 (for short
"Cr.P.C.") against the order dated 22.02.2023 passed by the learned 5 th
Additional Chief Judicial Magistrate, Vadodara (hereinafter referred to as
the "learned Trial Court") in Criminal Case No. 10884 of 2020, whereby
the learned Trial Court has dismissed the criminal case for want of
prosecution as the appellant did not remain present under the provisions
of Section 256(3) of Cr.P.C. and the respondent Nos. 2 to 4 - original
accused came to be acquitted from the offence under Section 138 of the
Negotiable Instruments Act, 1881 (hereinafter referred to as 'the NI
Act").
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1.1 The notice in this matter was issued to the respondent Nos. 2 to 4 at
the same address of the respondent No. 2 mentioned in the original
complaint and the notice was received by the Finance/Account Head who
was working for the past 20 years for the respondent No. 2 on behalf of
the respondent Nos. 3 and 4. A copy of the death certificate of the
respondent No. 4 was produced and the respondent No. 4 was deleted as
per the order dated 26.09.2023.
1.2 The respondent Nos. 2 to 4 are hereinafter referred to as "the
accused" in the rank and file as they stood in the original case for the sake
of convenience, clarity and brevity.
2. The brief facts culled out from the memo of the present appeal as
well as the record and proceedings are as under:
2.1 The appellant is the Bank of Baroda and the accused No 2 & 3 are
partners of the partnership firm accused no. 1. The accused No.1 through
its partners Nos. 2 & 3 had availed Cash Credit and Bank Guarantee
facilities, from the complaint bank to conduct their business and had
availed loan from Alkapuri Branch, Vadodara which was Existing Cash
Credit (Hypothecation of Stock cum Book Debts) of Rs. 5,50,00,000/-
(Rupees Five Crores Fifty Lacs Only) and Bank Guarantee (Performance/
Financial) of Rs. 4,75,00,000/- (Rupees Four Crores Seventy Five Lacs
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only, and total exposure Rs 10,25,00,000/- (Rupees Ten Crores Twenty
Five Lacs Only. As per Ledger Statement dated 12.02.2020 the accused
had an outstanding amount of Rs. 6,37,33,173.60/- (Rupees Six Crores
Thirty-Seven Lacs Thirty Three Thousand One Hundred & Seventy
Three & Sixty Paise Only) and the account of the accused became
irregular and was classified as Non-Performing Assets (N.P.A) as per the
guidelines of the RBI. The case of the accused was transferred to the
present ZOSARB for further recovery and to liquidate the loan the
accused issued cheque No. 002038 for Rs.1,75,00,000/- dated 30.11.2019
of HDFC Bank. The appellant deposited the cheque and the cheque was
returned with the endorsement "Funds Insufficient". The appellant gave
the demand statutory notice through his advocate on 11.02.2020 and as
per online acknowledgment the notice was duly served to the accused on
12.02.2020 by RPAD which was signed by the accused but the accused
did not repay the amount and hence the appellant filed the complaint
under Section 138 of the NI Act, before the learned 5 th Additional Chief
Judicial Magistrate, Vadodara.
2.2 The learned 5th Additional Chief Judicial Magistrate, Vadodara was
pleased to consider the affidavit, documents produced vide a list at
exhibit 3 and examination in chief of the appellant produced at exhibit 4
and take cognizance for the offence under Section 138 of the N I Act and
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passed an order to issue summons to the accused and the summons was
returned unserved to the accused. The accused did not appear before the
learned Trial Court and the matter was pending for a fresh address for
issuing a fresh summons. By an order dated 22.02.2023, the learned 5 th
Additional Chief Judicial Magistrate, Vadodara was pleased to dismiss
the complaint for want of prosecution on the part of the complainant.
3. Being aggrieved and dissatisfied by the impugned order the
appellant has preferred present Criminal Appeal under Section 378(4) of
Criminal Procedure Code.
4. Heard learned advocate Mr. Ankit Shah appearing for the appellant,
learned APP Mr. Bhargav Pandya for the respondent - State and Mr.
Pritesh Shah for the respondent No. 2 and 3.
5. Learned advocate Mr. Ankit Shah for the appellant has submitted
that the learned Trial Court has failed to appreciate the facts and
provisions of law in proper perspective and therefore the impugned
judgment is unsustainable and bad in law. Learned advocate further
submits that due to a bona-fide mistake, the advocate of the appellant did
not remain present on the date of passing of the impugned order and
therefore, the same may be quashed and set aside.
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6. Learned APP Mr. Bhargav Pandya for the respondent -state and Mr.
Pritesh Shah for the respondent No. 2 and 3 have submitted that after
recording the absence of learned advocate for the appellant the learned
Trial Court has passed the impugned order under Section 256 of the
Cr.P.C. and hence, this Court may not interfere with the impugned order
and have urged this Court to dismiss the present appeal.
7. As the matter has been dismissed by an order under Section 256 of
the Cr.P.C. it is appropriate to have a glance of Section 256 of Cr.P.C.
which reads as under:-
"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:
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. At this stage, it is also appropriate to take into account the
observations made by the Hon'ble Apex Court in the M/s. BLS
Infrastructure Limited Vs M/s. Rajwant Singh & Others reported in 2023
4 SCC 326 in Para 20 which is reproduced as under:
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"12. In Associated Cement Co. Ltd. (supra), the purpose of inserting a
provision like Section256 of the Code was discussed and in light thereof, in
paragraph 16, it was observed as under:
"16. What was the purpose of including a provision like Section 247 in
the old Code (or Section 256 in the new Code). It affords some
deterrence against dilatory tactics on the part of a complainant who set
the law in motion through his complaint. An accused who is per force
to attend the court on all posting days can be put to much harassment
by a complainant if he does not turn up to the court on occasions when
his presence is necessary. The section, therefore, affords protection to
an accused against such tactics of the complainant. But that does not
mean if the complainant is absent, the court has a duty to acquit the
accused in invitum."
After observing as above, it was held that where the complainant had
already been examined as a witness in the case, it would not be
appropriate for the Court to pass an order of acquittal merely on non-
appearance of the complainant. Thus, the order of acquittal was setaside
and it was directed that the prosecution would proceed from the stage
where it reached before the order of acquittal was passed."
8.1 A coordinate bench of this Court in the case of Sureshchandra
Chandulal Patni Vs Natwarlal Keshavlal Patni reported in 1992 1 GLR
626 observed in para 4 to 7 as under:
"( 4 ) SECTION 256 of the Code of Criminal Procedure provides that 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. The proviso to Sec. 256 further contemplates that where the
complainant is represented by a pleader or by the officer conducting the
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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.
( 5 ) In the instant case, the learned Magistrate has not recorded any reason
about his thinking it proper to adjourn the hearing of the case to some other
date. It appears that he has ignored the proviso to Sec. 256 of the Code of
Criminal Procedure. The power under Sec. 256 of the code of Criminal
Procedure has been conferred on the Magistrate obviously in the interest of
justice, with a view to seeing that the accused is not subjected to any undue
harassment. It is clear from the proviso to Sec. 256 of the Code of Criminal
Procedure that when the complainant is represented by a pleader or where the
Magistrate is of the opinion that the personal attendance of the complainant is
not necessary, the Magistrate may dispense with the personal attendance of the
complainant and proceed with the case. In the instant case, the learned
Magistrate does not appear to have applied his mind in dispensing with the
personal attendance of the complainant and to proceed with the case or to
adjourn the case to some other date as requested in the application submitted
by the Advocate for the complainant. In the present case, the situation as on
5/03/1984 squarely falls within the aforesaid proviso and still the learned
magistrate acted under sub-sec. (1) of Sec. 256 of the Code of Criminal
Procedure acquitting the accused. It is, therefore, clear that the learned
Magistrate has ignored the provision contained in proviso to Sec. 256 of the
Code of Criminal procedure and therefore the order passed by him is illegal
and unsustainable.
(6) IN the case of State of Gujarat v. Keshavaram Shivram Devmurari and
Anr. , (1977) XVIII GLR 524, this Court [ Coram : N. H. Bhatt, J. (as he then
was)] observed that it was really unfortunate to dismiss the complaint in
absence of the complainant and ignoring the proviso to Sec. 256 of the Code
of Criminal procedure and it was held that the repetition of such instances
would not be there in future in the Court of the Magistrate. However, it
appears that this has been ignored while dismissing the complaint and
acquitting the accused in the present case.
(7) SIMILARLY, in the case of State of Gujarat v. Dhirajlal Pranslianker.
Bhatt, reported in 1990 (1) GLH 466: (1990 (1) GLR 201), it is observed that
the. Court should exercise sound judicial discretion and should adjourn the
case when the complainant is absent and particularly when he is represented
by an Advocate."
9. On scrutiny of the record and proceeding of the learned Trial Court
it transpires that summons has not been served to the accused and the
matter has been rotated and the appellant had applied for issuing a fresh
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summons and the same was allowed. Thereafter neither the appellant nor
his learned advocate turned up to proceed with the matter and the court in
own motion issued summons to the accused but the same was returned
unserved and the matter was posted for producing a fresh address on
06.01.2023 and in the interest of justice the matter was adjourned to
22.02.2023 the date on which the learned Trial Court was pleased to pass
the following order :
ORDER
"1. The present complaint is dismissed for want of Prosecution under Section
256 of Criminal Procedure Code.
2. Consequently, the accused is acquitted from the alleged offence. File be
consigned to record room.
Date: 22/02/2023 Sd/- (illegible)
Place: Vadodara 05th Addl. Dr. Civil Judge &
A.C.J. Magistrate, Vadodara"
10. It is pertinent to note that the case has been dismissed for want of
service of summons to the accused but the notice in this matter has been
served on the same address of the firm as mentioned in the complaint and
the notice was received by the Finance/Accounts Head who was working
for the firm for the past 20 years and prima facie it appears that the
respondent Nos. 3 and 4 were avoiding service. In light of the settled
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principle of law of the Apex Court in M/s BLS Infrastructure Limited
(supra), it appears that the trial Court has committed an error in
dismissing the matter even though the evidence of the appellant was on
record.
11. Considering the facts and circumstances of the case and
considering the observations made in the decision of the Apex Court and
this Court referred hereinabove, this Court is of the considered opinion
that the present appeal is required allowed and the matter is to be
remanded back to the learned Trial Court for trial on merits.
12. Accordingly, the present appeal is allowed. The order dated
22.02.2023 passed by the learned 5th Additional Chief Judicial Magistrate,
Vadodara in Criminal Case No. 10884 of 2020 is hereby quashed and set
aside and the complaint is restored to its original status for trial in
accordance with law.
13. The learned Trial Court is directed to decide the complaint on its
own merits after giving proper opportunity to all the parties. The parties
are directed to cooperate with the learned Trial Court in the proceedings
without seeking any unnecessary adjournment.
(S. V. PINTO,J)
VVM
