Gujarat High Court
Bhavna Arun Kumar Parsrampuria vs Hdfc Bank Limited on 3 January, 2024
NEUTRAL CITATION
R/SCR.A/6043/2023 ORDER DATED: 03/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (MODIFICATION/DELETION OF
CONDITION) NO. 6043 of 2023
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BHAVNA ARUN KUMAR PARSRAMPURIA
Versus
HDFC BANK LIMITED
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Appearance:
NATASHA SUTARIA(7907) for the Applicant(s) No. 1
MR. UTKARSH SHARMA, APP for the Respondent(s) No. 2
MR VIVEK B GUPTA(5611) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE M. R. MENGDEY
Date : 03/01/2024
ORAL ORDER
1. Rule returnable forthwith. Learned Additional Public Prosecutor and learned advocate for the respondent no.1 waive service of notice of Rule on behalf of the respective respondents.
2. Present application is filed under Section 226 of the Constitution of India and Section 439(1)(B) of the Criminal Procedure Code, 1973. The applicant has prayed for the following reliefs :-
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NEUTRAL CITATION R/SCR.A/6043/2023 ORDER DATED: 03/01/2024 undefined I. That this Hon'ble Court may be pleased to allow the present applicant;
II. The Hon'ble Court may be pleased
to quash and set aside the order
dated 01.04.2023 passed by the
learned Sessions Court,
Ahmedbaad in Criminal Misc.
Application No.2028 of 2023;
III. The Hon'ble Court may be pleased
to delete the condition of
impounding the passport vide
order dated 24.07.2019 passed by the learned Metropolitan Magistrate, Ahmedabad (Court No.27) in Criminal Case No.45609 of 2018 and consequentially direct the Court to release the Original passports which were deposited on 25.07.2019 pursuant to the order dated 24.07.2019 in Criminal Case No.45609 of 2018 by learned Metropolitan Magistrate under Negotiable Instrument Act, at Ahmedabad.
Page 2 of 13 Downloaded on : Wed Jan 03 20:48:06 IST 2024 NEUTRAL CITATION R/SCR.A/6043/2023 ORDER DATED: 03/01/2024 undefined IV. Any other and such relief as the learned Court deems fit and proper in the interest of justice. 3. Learned advocate Ms. Natasha Sutaria
appearing on behalf of the applicant submits that the respondent no.1 has lodged complaint against the present applicant for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 before the learned Metropolitan Magistrate, Ahmedabad. In the said proceeding, non-bailable warrant came to be issued against the present applicant. The applicant had approached the concerned trial Court with a prayer to cancel the non-bailable warrant issued against her and had submitted the application to the said effect. Learned advocate for the applicant submits that on that occassion, the applicant had shown willingness to surrender her passport before the concerned trial Court to show Page 3 of 13 Downloaded on : Wed Jan 03 20:48:06 IST 2024 NEUTRAL CITATION R/SCR.A/6043/2023 ORDER DATED: 03/01/2024 undefined her bona-fide. Learned trial Court vide order dated 24.07.2019 had been pleased to allow the application filed by the applicant for cancellation of warrant. However, while passing said order, learned trial Court had imposed condition upon the present applicant to surrender her passport before the trial Court.
3.1 Learned advocate for the applicant further submits that thereafter, the applicant has preferred an application before the concerned trial Court seeking permission to go abroad and for returning of passport and on number of occassions, such applications filed by the applicant have been allowed by the concerned trial Court. Lastly, the applicant had preferred such application before the learned City Civil and Session Court, Ahmedabad being Criminal Misc. Application No.2028 of 2023 praying for return of passport and grant permission to visit her son, Page 4 of 13 Downloaded on : Wed Jan 03 20:48:06 IST 2024 NEUTRAL CITATION R/SCR.A/6043/2023 ORDER DATED: 03/01/2024 undefined who was staying abroad. The said application came to be dismissed by the learned Sessions Court vide order dated 01.04.2023. The applicant is desirous to go abroad to visit her son, who was suffering from illness. She, therefore, submits that as per the provision of Passport Act, it would be only the passport authority who has power to impound the passport for the cause mentioned in the said provision.
3.2 Learned advocate for the applicant further submits that the Hon'ble Apex Court in catena of judgments has held that the Criminal Court has no authority for impounding the passport while ordering to enlarge the accused on bail. Learned advocate for the applicant further submits that though, these contentions were raised before the learned Sessions Court, learned Sessions Court has not taken into consideration and no findings have been recorded on these Page 5 of 13 Downloaded on : Wed Jan 03 20:48:06 IST 2024 NEUTRAL CITATION R/SCR.A/6043/2023 ORDER DATED: 03/01/2024 undefined submissions. She, therefore, submitted to allow the petition by quashing and setting aside the condition for deposit of her passport imposed vide order dated 24.07.2019 by the trial Court. 3.3 Learned advocate for applicant has sought to rely upon the following judgments in support of her submissions:-
1. Rendered by the High Court of Gujarat in the case of Smt. Bhavna Arun Kumar Parsrampuria vs. HDFC Bank Limited in Special Criminal Application No.6043 of 2023;
2. Rendered by the Supreme Court in the case of Suresh Nanada vs Central Bureau of Investigation reported in (2008) 3 SCC 674;
3. Rendered by the High Court of Punjab and Haryana in the case of Dalbir Kaur vs Union of India and Others;
4. Rendered by the Supreme Court in the case of The Appropnate Authority and Another vs Smt. Sudha Page 6 of 13 Downloaded on : Wed Jan 03 20:48:06 IST 2024 NEUTRAL CITATION R/SCR.A/6043/2023 ORDER DATED: 03/01/2024 undefined Patit and Another;
5. Rendered by the Supreme Court in the case of Kanailal and Others vs Ram Chandra Singh and Others;
6. Rendered by the Supreme Court in the case of Maneka Gandhi vs Union of India (UOI) and Others.
4. Learned advocate Mr. Vivek Gupta appearing for the respondent no.1 submits that the non-bailable warrant was issued against the present applicant since her presence could not be procured by the learned trial Court despite issuance of summons and bailable warrant against her. The non-bailable warrant came to be issued against the applicant as a last resort with the purpose to secure her presence before the Court. The present applicant had approached the concerned trial Court for cancellation of said warrant by filing an application to the said effect. During the course of hearing of the said application, present applicant on her own had Page 7 of 13 Downloaded on : Wed Jan 03 20:48:06 IST 2024 NEUTRAL CITATION R/SCR.A/6043/2023 ORDER DATED: 03/01/2024 undefined shown willingness to surrender her passport before the learned trial Court to show her bona- fide. It was on the basis of the statement made by the present applicant that the learned trial Court had imposed condition upon her to surrender her passport. Therefore, it is now not open to the applicant to come to this Court and cite legal provisions. To the said effect that the learned trial Court could not order to impound the passport of the present applicant. He further submits that apart from the proceeding under N.I. Act, other proceedings under SURFACE Act are also going on against the present applicant and other co-accused and if the present application is allowed, in all probabilities, the applicant would not be available for facing any of these proceedings. He, therefore, submits to dismiss the present application.
5. Learned Additional Public Prosecutor Page 8 of 13 Downloaded on : Wed Jan 03 20:48:06 IST 2024 NEUTRAL CITATION R/SCR.A/6043/2023 ORDER DATED: 03/01/2024 undefined appearing for the respondent State vehemently opposes the application.
6. Heard learned advocates for the respective parties and perused the material available on record.
7. From the record it appears that the complaint for the offence under Section 138 of the N.I.Act was lodged by the respondent no.1 against the applicant. After filing of complaint, initially, summons was issued to the present applicant by the concerned trial Court and despite service of summons, the applicant did not appear before the concerned trial Court. Therefore, the learned trial Court was constrained to issue bailable warrant against the present applicant. Though, the said warrant was duly executed upon the applicant, she chose not to appear before the concerned trial Court and Page 9 of 13 Downloaded on : Wed Jan 03 20:48:06 IST 2024 NEUTRAL CITATION R/SCR.A/6043/2023 ORDER DATED: 03/01/2024 undefined therefore, as a last resort, non-bailable warrant was ordered to be issued by the learned trial Court against the applicant, which was executed upon the applicant and as a consequence, the applicant had appeared before the trial Court and had submitted an application for cancellation of non-bailable warrant issued against her and an application to the said effect had also been filed by the applicant before the learned trial Court. From the record it appears that during the course of hearing of the said application, the statement came to be made on behalf of the present applicant before the learned trial Court that she was ready and willing to surrender her passport before the concerned trial Court. On such statement being made, learned trial Court vide its' order dated 24.07.2019 had allowed the application for cancellation of non-bailable warrant filed by the applicant subject to surrender of her passport before the concerned Page 10 of 13 Downloaded on : Wed Jan 03 20:48:06 IST 2024 NEUTRAL CITATION R/SCR.A/6043/2023 ORDER DATED: 03/01/2024 undefined trial Court. The record further indicates that in compliance of the said order passed by the learned trial Court dated 24.07.2019, the applicant had surrendered her passport before the concerned trial Court. Thereafter, on numerous occassions, the applicant had preferred applications before the learned trial Court as well as before the learned Sessions Court seeking return of the passport and permission to go abroad. On several occassions, the Courts below were pleased to allow such applications filed by the applicant. Lastly, the applicant had preferred Criminal Misc. Application No.2028 of 2023 before the learned Sessions Court, Ahmedabad for the vary purpose, which came to be dismissed by the learned Sessions Court, Ahmedabad vide it's order dated 01.04.2023.
8. From the aforesaid facts, it appears that the applicant herein had complied with the Page 11 of 13 Downloaded on : Wed Jan 03 20:48:06 IST 2024 NEUTRAL CITATION R/SCR.A/6043/2023 ORDER DATED: 03/01/2024 undefined order passed by the learned trial Court on 24.07.2019 and thereafter, time and again requested the courts-below to return her passport to enable her to go abroad. On none of these occassions, the applicant has raised ground as regards to permissibility of imposing condition for surrendering of passport before any of the courts below. Moreover, when the applicant herein herself had shown her willingness to surrender her passport before the learned trial Court, now it would not lie in her mouth to contend that no such condition could have been imposed by the learned trial Court.
9. So far as judgments cited at bar by the learned advocate for the applicant are concerned, there can be no principles of law laid down in the said judgments, however, in the present case as stated herein-above, the fact remains that it was the applicant herself who had shown her Page 12 of 13 Downloaded on : Wed Jan 03 20:48:06 IST 2024 NEUTRAL CITATION R/SCR.A/6043/2023 ORDER DATED: 03/01/2024 undefined willingness to surrender her passport before the concerned trial Court and the applicant having shown such willingness, the trial Court had imposed such condition. Therefore, judgments which are sought to be relied upon by the learned advocate for the applicant would not render any assistance to the applicant.
10. In view of the aforesaid facts, the application is devoid of merits and therefore, the same deserves to be dismissed. However, it is made clear that it shall be open for the applicant to approach the concerned Court for permission as and when the need arises for her to go abroad.
11. With the aforesaid observations, present application stands dismissed. Rule discharged.
(M. R. MENGDEY,J) NABILA Page 13 of 13 Downloaded on : Wed Jan 03 20:48:06 IST 2024