Gujarat High Court
Bank Of Baroda Through Its Authorized ... vs State Of Gujarat on 27 February, 2025
NEUTRAL CITATION
R/CR.A/1224/2023 ORDER DATED: 27/02/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL APPEAL (AGAINST ACQUITTAL) NO. 1224 of 2023
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BANK OF BARODA THROUGH ITS AUTHORIZED SIGNATORY 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. 10883 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").
Page 1 of 9 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:53:31 IST 2025 NEUTRAL CITATION R/CR.A/1224/2023 ORDER DATED: 27/02/2025 undefined 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 Nos. 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 Page 2 of 9 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:53:31 IST 2025 NEUTRAL CITATION R/CR.A/1224/2023 ORDER DATED: 27/02/2025 undefined Seventy Five Lacs 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. 002037 for Rs.1,50,00,000/- dated 31.10.2019 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 its advocate on 11.02.2020 and as per the online acknowledgement 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 Page 3 of 9 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:53:31 IST 2025 NEUTRAL CITATION R/CR.A/1224/2023 ORDER DATED: 27/02/2025 undefined and take cognizance for the offence under Section 138 of the N I Act and 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 order is unsustainable and bad in law. Learned advocate further submits that due to a bonafide 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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NEUTRAL CITATION R/CR.A/1224/2023 ORDER DATED: 27/02/2025 undefined "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 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.
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( 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 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 Page 7 of 9 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:53:31 IST 2025 NEUTRAL CITATION R/CR.A/1224/2023 ORDER DATED: 27/02/2025 undefined 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 for 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 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.Page 8 of 9 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:53:31 IST 2025
NEUTRAL CITATION R/CR.A/1224/2023 ORDER DATED: 27/02/2025 undefined
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. 10883 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 Page 9 of 9 Uploaded by VISHAL MISHRA(HC01088) on Thu Feb 27 2025 Downloaded on : Thu Feb 27 22:53:31 IST 2025