TaxTMI 
TaxTMI 
2026 (6) TMI 1
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....raf in person. JUDGMENT MANOJ JAIN, J 1. All these six petitions, being connected, are being disposed of by this common order. 2. Let me narrate the factual matrix, albeit, in brief. 3. Two separate complaints were filed under Section 138 read with Section 142 of NI Act [Negotiable Instruments Act, 1881]. Complaint Case No. 463235 of 2016 was filed by Sh. Shyam Kishan Saraf and Complaint Case No. 469261 of 2016was by his father Sh. Banwari Lal Saraf. These were against four accused persons i.e. Universal Buildwell Pvt. Ltd., Sh. Raman Puri (Managing Director), Sh. Varun Puri and Sh. Vikram Puri (Directors). 4. Though the facts are almost similar and identical, for reference purpose, the Court would refer to the pleadings and orders related to complaint filed by Sh. Shyam Kishan Saraf. 5. The complainant had given a loan of Rs.1.50 crores to the accused Company and in lieu thereof, a cheque was issued. Such cheque, when presented, returned dishonoured with remarks "insufficient funds". Since issuance of legal notice did not yield any result, complaint was filed against all the abovesaid accused persons. On the basis of averments made in the complaint and after p....
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....antive sentence remains the same. Accused filed appeal against such conviction also, which was registered as Crl. Appeal No. 193/019 and such appeal has also been dismissed on 31.01.2020. 13. The present Revision Petitions take exception to such dismissal of appeals. 14. Evidently, there is inordinate delay of more than 2100 days in filing all these Revisions Petitions. 15. An application under Section 5 of Limitation Act, 1963 read with Section 528 BNSS 2023 [Bhartiya Nagarik Suraksha Sanhita 2023] has been filed seeking condonation of delay. 16. It is averred therein that the Revisionists were implicated in multiple FIRs which emanated from builder-buyer disputes and registration of all such cases led to financial crisis. According to revisionists, around 58 cases related to cheque-bouncing complaints and 80 FIRs were lodged against them and they could not effectively pursue and defend all such matters and were declared proclaimed offenders in multiple cases. They claimed that they were arrested in October, 2024 and are in custody since then. It is averred that their 'newly appointed legal team' prepared list of all cases and then it came to fore that the appeals in q....
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....ir side. 19. According to Sh. Shyam Kishan Saraf, the present petitions are wholly misconceived and devoid of any merit and need to be dismissed outrightly. He contends that the delay in question is not a small one but is of huge period of around six years and it has not been explained in any manner whatsoever. On the contrary, the accused, with impunity, kept on evading law and did not, intentionally and deliberately, participate in the legal proceedings and failed to submit themselves to the jurisdiction of the Court and were, therefore, declared Proclaimed Offenders. According to him, they kept on hiding and concealing themselves at unknown places and since their conduct demonstrates complete lack of bonafide and apathy for Rule of law, the delay does not deserve to be condoned. He submits that such discretionary power of condonation should not be exercised in favour of a litigant who has no respect for the justice delivery system and who shows unabated disregard to the majesty of the Court. He relies upon P.K. Ramachandran vs. State of Kerala and Another (1997) 7 SCC 556, Lanka Vanketeswarlu (Dead)by LRS vs. State of Andhra Pradesh And Others (2011) 4 SCC 363 and Basawaraj v....
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....he time of pronouncement of order nor before the Appellate Court. They have not divulged about their whereabouts during all these six years and have failed to narrate as to what prevented them to approach the Court. Even if they were embroiled in multiple cases, they should have not have shown such a casual and lackluster approach. 27. Quite clearly, the delay is not liable to be condoned here. 28. Such discretionary relief is not meant for those who have no respect for the Courts and who abscond after being pronounced guilty. Merely because there were hundreds of other cases against the accused persons, it would not mean that they can approach the Court, as per their whims and fancies, and seek condonation of delay. 29. Viewed thus, they are not entitled to any condonation of delay. 30. However, at the same time, revisional court cannot shut its eyes to the apparent illegality in the manner, these appeals were taken up, heard and disposed of. 31. The record of Appellate Court would indicate that the accused never ever appeared before the Appellate Court. Since they did not surrender within the stipulated period, coercive process was issued by the learned Trial Court....
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....y stands dismissed." (emphasis supplied) 37. Of course, as per the settled legal position, a criminal appeal cannot be dismissed-in-default or for non-prosecution. 38. Reference be made to Bani Singh (supra). In said case, the question arose whether a criminal appeal could be dismissed for non-prosecution. The accused therein was held guilty by the learned Trial Court for offences under Section 363 and 368 IPC and, feeling aggrieved by such judgment of Sessions Court, appeals were filed before the Jurisdictional High Court and when the appeals were taken up, since there was no one present to argue the matter on behalf of the appellant, the appeal was dismissed for non-prosecution. The dismissal was without going into the merits of the case and while dismissing such appeals, the Hon'ble High Court relied upon Ram Naresh Yadav vs. State of Bihar AIR 1987 SC 1500. Feeling aggrieved, Special Leave Petition (SLP) was filed by the appellants before the Hon'ble Supreme Court and Hon'ble Supreme Court while overruling Ram Naresh Yadav (supra) and affirming Shyam Deo Pandey v. State of Bihar AIR 1971 SC 1606, came to the conclusion that the appeal could not have been dismisse....
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....o the pleader was also considered sufficient since he was representing the appellant. So also Section 386 provides for a hearing to be given to the appellant or his lawyer, if he is present, and both need not be heard. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the court shall adjourn the case if both the appellant and his lawyer are absent. If the court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. W....
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....the appeals could have been taken up for final hearing when the appellants had already been declared proclaimed offenders by the learned Trial Court. Secondly, whether the Appellate Court made any endeavour to cross-check the reasonings given by Trial Court with the evidence on record and satisfied itself about the veracity of the findings returned by the trial court or not. Thirdly and most importantly, if the Appellate Court was keen in pursuing with the appeals, whether it ought to have appointed any Amicus Curiae or not. 42. It need not be emphasized that appeal is continuation of trial. Criminal Procedure Code does not envision holding someone guilty in absentia. A trial court can only record evidence in terms of Section 299 Cr.P.C. and such deposition can be used once such absconding accused is, eventually, arrested. The new Act i.e. BNSS, 2023 has, interestingly, come up with a major change in this regard and the corresponding provision i.e. Section 356 BNSS, now, stipulates for decision of case in absentia. However, since the present matter is governed by the provisions of Cr.P.C. and the accused had already been declared proclaimed offenders, the Appellate Court should ....
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....s Curiae as well as Public Prosecutor for the State and after perusing the record of the case, it should have decided the case on merits. 47. Thus, in any such situation, if the Appellate Court chooses to set down the appeal for hearing, it can be resorted to, only after appointment of Amicus Curiae. 48. A question may arise as to whether such Amicus Curiae can render requisite assistance, without instructions from the concerned litigant, who is either not available or absconded. 49. The answer has to be in affirmative. 50. The role of Amicus Curiae is totally different from that of a privately engaged counsel or a legal-aid counsel provided to any party. A privately engaged counsel or a legal-aid counsel takes instructions from the concerned party and then represents such party before the court whereas an Amicus Curiae is not dependent or bound by any such instructions. Being friend of the Court, the role of Amicus Curiae is to assist the Court, and he can render effective assistance from the perusal of the TCR, even if there are no instructions. He can make appropriate submissions with respect to the grounds of appeal and can answer those suitably, after careful perus....
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....t case, the evidence has been given by the SPA which is in contravention of the law laid down by the Hon'ble Supreme Court in the A.C. Narayanan case. ix. That the Ld. MM has failed to appreciate that the complainant evidence has not been filed and verified as per settled provisions. x. That the Ld. MM has failed to appreciate the MOU, Ex.CW1/39, according to which all previous agreements stand cancelled on signing of the same. xi. That the Ld. MM has failed to appreciate the conduct of the complainant of not filing the documents with the complaint and the complainant has filed the documents only after filing of the application U/s 145(2) by the appellants. xii. That the Ld. MM has failed to appreciate that the cheque issued was not for any legally enforceable debt. xiii. That the Ld. MM has failed to appreciate that multiple agreements between the parties were executed and has only considered the loan agreement which is hit by Section 23 of Indian Contract Act. xiv. That the Ld. MM has failed to appreciate that Ex.CW1/35, Agreement to Sell executed between the parties was not cancelled and as per which it is the respondent ....