The High Court dismissed the application for leave to prefer an appeal against an order of acquittal. The court held that the complaint was not filed by the competent authority and the complainant remained absent for over a year, preventing any purpose of justice from being served.
Leave to prefer appeal against the order of acquittal was denied
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
1 (14) Appln 367/10
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
Amk
CRIMINAL APPLICATION NO. 367 OF 2010
Kamal Pravinbhai Shah.. Applicant
Vs.
Mukesh Gokal & Anr... Respondents
Mr. Bharat Vaishnava i/b Bharat Vaishnava & Co. for the
Applicant.
Mr. Robin Jaisinghani a/w Basant Tilokani and Mr. Pritesh
Patel i/b M/s. Jhangiani Narula & Associates for
Respondent No.1.
Ms. U. V. Kejriwal APP for Respondent No.2.
CORAM: J. H. BHATIA, J.
Date: 10th March, 2011
P.C.
1.Heard the learned Counsel for the Applicant and
the learned Counsel for the accused-Respondent.
2.This application is filed for leave to prefer
Appeal against the order of acquittal passed by the
learned Magistrate under Section 256 of the Code of
Criminal Procedure as the Complainant was absent.
3.Facts in brief are that the accused had
allegedly issued 2 cheques of Rs.2,00,000/- and Rs.
3,00,000/- respectively in September, 1997 in favour of
of M/s. Deepin Bleaching Pvt. Ltd., a private limited
company. The said cheques were presented for encashment
2 (14) Appln 367/10
by the Complainant but the cheques were dishonoured. In
spite of notice issued by the Complainant, the accused
failed to make payment. Therefore the complaint was
filed in October, 1997. In due course process was issued
and the matter was pending before the trial Court. It
appears that on 07.08.2003 affidavit in lieu of
examination-in-chief was filed by the Applicant Kamal
Pravinbhai Shah, who claims to be the Manager of M/s.
Deepin Bleaching Pvt. Ltd. After that on certain dates
the matter could not be taken up because the Court was
vacant. On 01.12.2004, 10.02.2005, 01.04.2005,
06.08.2005, 19.09.2005, 26.09.2005 and lastly on
04.10.2005 the Complainant and his Advocate were absent.
The accused had also submitted an application before the
learned Magistrate that the Complainant was consistently
absent and therefore the complaint should be dismissed
under Section 256 of the Code of Criminal Procedure. In
spite of that the matter was posted on the next date i.e.
On 04.10.2005. On that date also none appeared for the
Complainant and finally the complaint was dismissed under
Section 256 of the Code of Criminal Procedure and the
accused was acquitted. The present application for leave
to prefer an Appeal along with application for condoning
of delay came to be filed on 05.10.2009 i.e. almost 4
years after the dismissal of complaint. Anyhow the
3 (14) Appln 367/10
application for condonation of delay was allowed and the
delay was condoned by this Court.
4.In para 10 of this application it is contended
that the complainant was present before the Court while
the accused was not present but the case was adjourned to
01.12.2004 as the Court was vacant. It is also contended
that the complainant’s Advocate attending the matter had
told him that as and when the matter would come up for
further proceeding, he would be called and that since
Affidavit of examination-in-chief was filed, it would
take long time before the matter would finally come up.
On perusal of roznama, it appears that on 23.09.2004 the
Complainant and his Advocate were absent. Thereafter on
01.12.2004 and on every date thereafter the Complainant
and his Advocate were absent. It is not correctly stated
in the application that on 01.12.2004 and thereafter the
Advocates for the Complainant were attending the Court.
In fact none of them was present from 23.09.2004 till the
complaint was dismissed. There is no plausible
explanation why no Advocate was appearing for the
Complainant for more than 1 years, even if the
Complainant was, as alleged by him, informed that as and
when required, he would be called.
4 (14) Appln 367/10
5.On perusal of the complaint, it appears that
the payee of the cheque was M/s. Deepin Bleaching Pvt.
Ltd. Company. Section 142 (a) provides that no Court
shall take cognizance of any offence punishable under
Section 138 except upon a complaint, in writing, made by
the payee or, as the case may be, the holder in due
course of the cheque. As the cheque was dishonoured, the
complaint could have been filed by M/s. Deepin Bleaching
Pvt. Ltd. Who was payee. Of course as the company
incorporated under Company law has to act through same
human being, the complaint should have been filed by the
Complainant but through some person duly authorized for
the same. In the present case the title of the complaint
shows that the Kamal Pravinbhai Shah was the complainant
in the capacity of Manager of M/s. Deepin Bleaching Pvt.
Ltd. Firstly the complaint could not be filed by the
Applicant Kamal Pravinbhai Shah as the complaint could
have been filed by M/s. Deepin Bleaching Pvt. Ltd.
through its Manager Kamal Pravinbhai Shah and not
otherwise. Secondly in the complaint nowhere it is
mentioned that the company had by passing any resolution
etc. authorized Kamal Pravinbhai Shah to file the
complaint under Section 138. Thus neither the complaint
is filed by the payee of the cheque nor it is filed by a
person duly authorized. It is material to note that the
5 (14) Appln 367/10
present Application and Appeal are also filed by said
Kamal Pravinbhai Shah and not by the Company. The
learned Counsel for the accused-Respondent contended that
in view of this ground itself, the complaint is liable to
be dismissed and in view of these circumstances, if now
the leave is granted to prefer the Appeal and even if the
Appeal is allowed and the complaint is restored to file,
final result will be dismissal of the complaint on this
legal ground. There is substance in his contention.
6.Taking into consideration all the facts and
circumstances, it appears that the complaint was not
filed by the competent person. Secondly the Complainant
and Advocate were absent for more than 1 year without
explanation. The reasons given in para 10 of the present
application also do not appear to be correct. Therefore,
no purpose of justice would be served by granting the
leave.
7.For the aforesaid reasons, the application
stands dismissed.
3 issues framed by the court
Whether leave to prefer an appeal against an order of acquittal dismissed under Section 256 CrPC should be granted when the complaint was not filed by the competent company authority.
Whether to condone the delay when the complainant and advocate were absent for over a year without plausible explanation.
Whether justice would be served by allowing an appeal where the complaint was legally flawed regarding locus standi.
2 provisions across 2 enactments
Kamal Pravinbhai Shah
Mukesh Gokal & Anr
J. H. BHATIA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court