(1) Cri. Appeal No. 658 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Appeal No. 658 of 2011 The Aurangabad People's Cooperative Bank Ltd., Aurangabad, Through its Authorised Officer, Shri Radhakisan Rustum Pawar, Age : 51 years, .. Appellant Occupation : Service, (Original R/o. Begumpura, Aurangabad. complainant) versus Ramdas Maruti Kurade, Age : Major, Occupation : Agriculture, R/o. C/o. Dhanayat Wastee, .. Respondent Gangapur, Dist. : Aurangabad. (Original accused) ....................... Mr. Virendra Kale, Advocate, for the appellant. Mr. Amol Ghule Patil, Advocate, for the respondent. ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 12TH DECEMBER 2011 (2) Cri. Appeal No. 658 of 2011 ORAL JUDGMENT : 1. Heard learned respective Counsel for the parties. 2. With the consent of learned Counsel for the parties, taken up for final hearing and heard finally. 3. This is an appeal preferred by the appellant (original complainant), challenging the impugned order dated 4-9-2010, passed by the learned 3rd Judicial Magistrate (F.C.), Aurangabad, in S.C.C. No. 9001 of 2004, thereby dismissing the complaint, in default, and acquitting the accused i.e. respondent herein, for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. 4. I have perused the impugned order dated 4-9-2010, and the record and proceedings with the assistance of the learned Counsel for the parties. 5. Parties are hereinafter referred to as per their original status i.e. complainant and accused. 6. The appellant is a Cooperative Bank registered under the Maharashtra Cooperative Societies Act, 1960, and doing its (3) Cri. Appeal No. 658 of 2011 business of banking at Aurangabad, under the license issued by the Reserve Bank of India. It is the contention of the appellant that the appellant advances different types of loans to its customers and effects recovery of its loan in accordance with the provisions of its bye-laws and the regulations of the Reserve Bank of India, as well as, provisions of the Maharashtra Cooperative Societies Act, 1960, and Rules framed thereunder. 7. It is the contention of the appellant that the respondent has obtained loan of Rs. 25,000/- on 8-5-2003, from the appellant / Bank for the purpose of his daughter's marriage and executed the required documents and assured the repayment of the said loan with interest to the appellant / Bank. However, the respondent failed to make repayment of the said loan as per his promise and as per the terms and conditions. Hence, the appellant made repeated demands to the respondent for repayment of the said loan and interest. Thereupon, the respondent issued cheque of Rs. 19,500/- to the appellant, bearing No. 014511, drawn on Aurangabad People's Cooperative Bank Ltd., towards repayment of the dues on 20th September 2004. 8. The appellant presented the said cheque for encashment purpose on 20th October 2004. However, the said (4) Cri. Appeal No. 658 of 2011 cheque was dishonoured and was returned unpaid along with the cheque return memo on the same day, with the endorsement "Not arranged for sufficient funds". Hence, the appellant / Bank issued statutory notice to the respondent under Section 138 of the Negotiable Instruments Act, and thereby called upon the respondent to pay the amount of dishonoured cheque. The said notice was duly served upon the respondent, but he failed to pay the cheque mount to the appellant within the stipulated period from the receipt thereof. Hence, the appellant filed the complaint against the respondent before the trial court under Section 138 of the Negotiable Instruments Act. The complaint was filed on 18-11-2004. Verification of the appellant was recorded on 25-7-2006, and process came to be issued against the respondent on 25-7-2006. The respondent appeared in the said complaint and his plea was recorded on 1-4-2010, and he pleaded not guilty and claimed to be tried. 9. Thereafter, the matter was kept for evidence. However, it appears that the appellant remained absent. Hence, the respondent gave application, Exhibit 24, on 4-9-2010, to dismiss the complaint under Section 256 of the Code of Criminal Procedure, 1973, since the appellant / complainant remained absent. Learned trial court called for say of the appellant. However, it appears that it was not filed. Hence, learned trial (5) Cri. Appeal No. 658 of 2011 court passed an order due to absence of the complainant and its Counsel, and dismissed the said complaint in default, and acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, under Section 256 of the Code of Criminal Procedure, on 4-9-2010. 10. Being aggrieved and dissatisfied by the said order of dismissal of the complaint, the appellant (original complainant) has approached this Court by way of present Appeal. 11. The appellant contends that before passing of the impugned order in the present matter, affairs of the appellant / Bank were looked after and conducted under the supervision of the Liquidator as the appellant / Bank has gone into liquidation. The District Deputy Registrar, Cooperative Societies, Aurangabad, was appointed as Liquidator of the appellant / Bank and required to attend the affairs of the appellant / Bank in addition to his multifarious duties as District Deputy Registrar, Cooperative Societies, Aurangabad. It is also contended by the appellant that the day-to-day work of banking transaction of the appellant / Bank is quite heavy and the Liquidator has to attend heavy banking work in addition to his duties and was hardly in a position to attend other official and administrative matters promptly. Moreover, it is further contended that after the (6) Cri. Appeal No. 658 of 2011 appellant / Bank went in liquidation, there was reshuffling of the staff members and assignments amongst them. Hence, in view of the aforesaid position and due to changes and inability of the Liquidator to attend other official matters of the Bank and its officer could not remain present before the court, as well as, Counsel for the Bank also could not remain present before the court, since he had no instructions in that respect. 12. It is also canvassed by the appellant that the authorized officer of the appellant / Bank was changed by the order of Liquidator, and therefore, Counsel of the appellant / Bank was unable to lead evidence in the absence of the authorized officer. It is further submitted that the respondent has been acquitted by the order of dismissal of the complaint in default which is a technical dismissal and not the dismissal on its own merits, and opportunity is required to be given to the complainant to prosecute the said complaint on its own merits. In support of the said contentions, learned Counsel for the appellant has relied upon judgment of the Hon. Apex Court, in the case of Mohd. Azeem Vs. A. Venkatesh and another, reported in (2002) 7 SCC 726, wherein it has been held that it is not in the interest of justice to dismiss the complaint in default on the ground of singular default in appearance on the part of the complainant. (7) Cri. Appeal No. 658 of 2011 13. Learned Counsel for the respondent has opposed the present Appeal vehemently, and submitted that the Roznama of the complaint is self-explicit, and the complainant and its Advocate remained absent on various dates, such as, 11-6-2010, 12-7-2010, 20-7-2010, 9-8-2010, 25-8-2010, and also on 4-9-2010, on which date the said complaint came to be dismissed in default. Hence, learned Counsel for the respondent submits that the conduct of the complainant / appellant is evident from the Roznama, and the appellant and its Advocate were not diligent in prosecuting the said complaint, and hence, it is submitted that the learned trial court has rightly dismissed the complaint in default and acquitted the accused under Section 256 of the Code of Criminal Procedure. 14. It is also pointed out by the learned Counsel for the respondent, while passing the order of dismissal of the complaint on 4-9-2010, learned trial court has rightly observed that it seems that the complainant is not interested in contesting the case. Moreover, learned Counsel for the respondent also pointed out that on the date earlier before dismissal of the complaint i.e. on 9-8-2010 also, complainant and its Counsel remained absent and they did not adduce any evidence, and hence, matter was posted on 4-9-2010 for orders. However, on 4-9-2010 also, complainant (8) Cri. Appeal No. 658 of 2011 and its Advocate remained absent, and hence, said complaint came to be dismissed by the learned trial court, in default, and acquitted the accused under Section 256 of the Code of Criminal Procedure, rightly, and learned Counsel for the respondent further submits that no interference is warranted in the present appeal, and urged that the present appeal be dismissed. 15. On perusal of the record and proceedings and after considering rival submissions advanced by the learned Counsel for the parties, Roznama of S.C.C. No. 9001/2004 is self- explanatory which discloses that the appellant i.e. original complainant remained absent on numerous dates i.e. 11-6-2010, 12-7-2010, 20-7-2010, 9-8-2010, 25-8-2010, and also on 4-9-2010, and accordingly, since the appellant and his Advocate remained absent, the respondent preferred an application before learned trial court on the said date and prayed for dismissal of the complaint under Section 256 of the Code of Criminal Procedure, under Exhibit 24, and hence, it appears that the learned trial court called for say of the appellant, but say was not filed by the appellant, and hence, learned trial court proceeded to dismiss the said complaint, in default, on 4-9-2010, and consequently, acquitted the accused for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881, under Section 256 of the Code of Criminal Procedure, 1973, while allowing the said (9) Cri. Appeal No. 658 of 2011 application, and order was passed to that effect at Exhibit 1 on the said complaint. 16. Hence, it is apparently clear that the dismissal of the said complaint is due to the default of the complainant and its Advocate who remained absent on 4-9-2010, and it is a technical dismissal under Section 256 of the Code of Criminal Procedure, and not dismissal of the said complaint on its own merits. Moreover, in the said context, the appellant has given plausible explanation for the absence of the complainant and its Advocate, that the affairs of the appellant / Bank were looked after and were conducted under the supervision of the Liquidator as the appellant / Bank has gone into liquidation, and District Deputy Registrar, Cooperative Societies, Aurangabad, was appointed as Liquidator for the said Bank, and he was required to attend to the affairs of the Bank in addition to his multifarious duties as District Deputy Registrar, Cooperative Societies, Aurangabad, and even day-to-day working of the appellant / Bank was quite heavy, and therefore, the said Liquidator was hardly in a position to spare time to attend other administrative matters promptly. Moreover, due to liquidation of the appellant / Bank, there was reshuffling of the staff members and their assignments were changed, and hence, instructions could not be imparted to Bank's Counsel which ultimately resulted into absence of the Bank's (10) Cri. Appeal No. 658 of 2011 officer and Counsel of the Bank before the court on the relevant date i.e. 4-9-2010, which consequently culminated into dismissal of the said complaint in default. Hence, it is apparently clear that the appellant / Bank has pleaded and proved sufficient cause for non-appearance of its officer and its Counsel on the relevant day i.e. 4-9-2010 i.e. date of dismissal of the complaint. Besides, it also appears from Roznama that the accused also remained absent on some dates. Hence, interest of justice warrants that the opportunity be given to the appellant to prosecute the complaint filed before learned trial court on its own merits, but simultaneously, the respondent also deserves to be compensated aptly, by awarding reasonable costs. 17. In the circumstances, having comprehensive view of the matter, present appeal deserves to be allowed, and the impugned order dated 4-9-2010 deserves to be quashed and set aside, and the matter is required to be remanded back to the learned trial court, and the parties are required to be directed to appear before learned trial court on a specified date, with further directions that not to seek adjournments unless warranted due to unforeseen circumstances, with a request to the learned trial court to conduct the matter on its own merits, but subject to payment of reasonable costs by the appellant to the respondent, which is quantified at Rs. 2,000/-, within a period of two weeks from (11) Cri. Appeal No. 658 of 2011 today. 18. In the result, present Criminal Appeal is allowed, and the impugned order dated 4-9-2010 stands quashed and set aside, and the matter is remitted back to the learned trial court, and the parties are directed to remain present before the learned trial court on 16th January 2012, at 11.00 a.m., with further directions not to seek adjournments unless warranted due to unforeseen circumstances, and the learned trial court is requested to conduct the said case and decide it on its own merits, subject to payment of costs of Rs. 2,000/- [Rupees two thousand only] by the appellant (original complainant) to the respondent (original accused), within a period of two weeks from today, and the present Criminal Appeal is disposed of finally. 19. Record and proceedings be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ......................... bgp/kapp658