Delhi District Court
Susenjit Mallik vs . Nct Of Delhi on 13 April, 2018
Susenjit Mallik vs. NCT of Delhi
IN THE COURT OF Dr. VIJAY KUMAR DAHIYA
SPECIAL JUDGE : CBI [PC ACT]:
DWARKA COURTS : NEW DELHI.
In the matter of :
CA No.18/17
Susenjit Mallik
working for gain at
M/s Mallick Gold House Pvt. Ltd.,
of 164, Bidhan Sarani, Beadon Street,
Kolkatta 700 006, West Bengal. ..........Appellant
versus
1. National Capital Territory of Delhi.
2. Syndicate Bank
A body corporate constituted under the Banking
Companies (Acquisition & Transfer of Undertaking
Act), having its head office at Manipal, India and
one of its branch office at East Patel Nagar, New Delhi.
...........Respondents
Date of Institution : 12.01.2015
Date of conclusion of arguments : 02.08.2017
Date of Order : 13.04.2018
CA No.18/17 Page 1/26
Susenjit Mallik vs. NCT of Delhi
J U D G E M E N T
1. The present Appeal preferred against the impugned Judgment dated 09.12.2014 and Order on Sentence dated 17.12.2014 whereby the appellant/accused has been convicted for Simple Imprisonment of Six Months and compensation of Rs.57,00,000/ to the complainant and in case of default of payment, the appellant shall undergo further imprisonment of One month. For the sake of convenience complainant and accused are hereinafter referred to as respondent no.2 and appellant respectively.
2. Brief facts relevant for disposal of the present appeal are like this. The respondent no.2 filed the complaint under Section 138 Negotiable Instruments Act against the accused persons. The accused no.1 is a Private Limited Company and accused no.2 to accused no.6 were Directors of accused no.1. The accused no.1, through accused no.2 to accused no.6 requested for financial assistance to the tune of Rs.1,30,00,000/ in the form of advance against the export bills after furnishing the requisite documents from the respondent no.2. The said loan facility was advanced in the form of advance against export bills to the accused on various dates i.e. Rs.20,00,000/ on 06.04.2009, CA No.18/17 Page 2/26 Susenjit Mallik vs. NCT of Delhi Rs.22,00,000/ on 17.04.2009, Rs.43,00,000/ on 30.04.2009, Rs.45,00,000/ on 10.06.2009. The accused for repayment of the said loan issued three cheques bearing Nos.058266 dated 20.03.2010 of Rs.10,00,000/ 058267 dated 25.03.2010 of Rs.10,00,000/ and 058268 dated 23.04.2010 of Rs.40,00,000/. After availing the said loan, it was assured that the bills against which the loan facility was granted, will be honoured. However, the said bills remain unpaid, inspite of repeated follow ups. The said fact regarding non payment of the bills was brought to the notice of accused persons who assured the payment of the unpaid amount and issued four cheques totaling to an amount of Rs.1 crore. All the cheques including the cheque bearing no.058269 were presented which were dishonoured. Therefore, the respondent no.2 sent a legal notice calling upon the accused to pay the amount of the said loan within 15 days, but the accused persons neither tendered the amount nor replied the said legal notice.Thereafter, the respondent no.2 filed a complaint under Section 138 NI Act. The Ld. Trial Court, after recording Pre Summoning Evidence, summoned the accused persons. Thereafter, Notice was framed against the accused persons and the complainant led evidence and after closing of the complainant's evidence, accused were examined under Section 313 read with Section 281 CrPC. Thereafter, the accused led evidence CA No.18/17 Page 3/26 Susenjit Mallik vs. NCT of Delhi and DW1 appeared and examined and thereafter, he was discharged. DE was closed and Final Arguments were heard. Accused no.3 and 4 failed to appear before Ld. Trial Court and trial of accused no.3 and accused no.4 was separated by the Ld. Trial Court vide Order dated 22.02.2012. The accused no.1 and accused no.2 were convicted and accused no.5 & 6 were acquitted through the impugned judgment.
3. Feeling aggrieved by the impugned judgment and order on sentence, the present appeal has been filed.
4. It has been contended by counsel for the appellant that the Ld. MM has passed the impugned Judgment and Order on Sentence in total violation of the settled principle of law, without taking into consideration that the appellant has not issued the cheques in question in discharge of his legal liability owed to the respondent no.2 but as per case of respondent no. 2 loan was granted to accused no. 1 but no documentary evidence has been led in this regard and the Ld. Trial Court has not appreciated the fact that self drawn cheques were not issued to respondent no. 2. Although the appellant was Director of accused no. 1 yet the affairs of accused no. 1 were conducted by accused no. 3 & 4 being directors of accused no. 1 who have been CA No.18/17 Page 4/26 Susenjit Mallik vs. NCT of Delhi authorized to conduct business of accused no. 1 in items of the resolution passed by accused company/accused no.1. Therefore, the appellant being merely authorized signatory and director of accused no.1 can't be fastened under personal liability qua cheque in question. The financial assistance was taken by the accused persons who have not been put to trial. The accused no.3 and 4 were appointed as directors of the company/accused no.1 and they were supposed to look into the entire transaction and the appellant issued the cheques as per the directions of directors / accused no.3 and accused no.4. The respondent no.2 has failed to establish that the appellant was in control and in charge of the company as per requirement of Section 141 NI Act so as to attract the penal provisions of Section 138 Negotiable Instruments Act. There is no averment in the complaint that appellant was in charge and responsible for the conduct of business of accused no.1 at the time of commission of offence u/s 138 of N.I. Act, in terms of resolution dated 22.04.2009 passed by accused company appointing accused no.3 and 4 to conduct business of accused company/accused no.1. The reliance has been placed on the following Judgments :
(i) Standard Chartered Bank vs. State of Maharastra (2016) 6 SCC 62 ;
(ii) Pooja Ravinder Devidasani vs. State of Maharashtra, (2014) (16) SCC 1 ;CA No.18/17 Page 5/26
Susenjit Mallik vs. NCT of Delhi
(iii) A. K. Singhania vs. Gujarat State Fertilizers Co. Ltd.
(2013) 16 SCC 630 ;
(iv) Anita Malhotra vs. Apparel Export Promotion Council, (2012) 1 SCC 520 ; and
(v) National Small Industries Corporation Ltd. vs. Harmeet Singh Paintal (2010) 3 SCC 330.
5. It has been further submitted that the Ld. Trial Court has not appreciated the admission made by PW1 in his cross examination that he has no knowledge regarding the transaction between the parties. Apart from that, no document has been placed on record by the respondent no.2 as to how the cheques happened to be in possession of the respondent no.2. It is further submitted that the Power of Attorney holder can depose regarding those facts to which he is witness in the matter of transaction as an agent of the holder in due course. Therefore, Power of Attorney holder who has no specific knowledge of the transaction cannot be examined. It is further submitted that no offence under Section 138 NI Act is made out in as much as the appellant has discharged the burden of proof of rebuttable presumption raised under Section 138 NI Act. The cheque in question was never issued in discharge of legal enforceable debt in as much as no document has been produced to fasten the appellant's legal liability towards the cheque in question. The demand notice was not served upon the appellant as the mandate in Proviso (b) of CA No.18/17 Page 6/26 Susenjit Mallik vs. NCT of Delhi Section 138 NI Act. The service of Notice under Section 251 CrPC on the appellant is also illegal. The appellant is also not examined under Section 313 CrPC as per mandate of law. The self drawn cheque can't give rise to an offence u/s 138 N.I. Act in as much as the said cheque is neither a bearer cheque nor the complainant be held as holder in due course under section 9 of the N.I. Act. Therefore, rebuttable presumption under section 118 of N.I. Act cannot be raised against appellant. In this regard, reliance has been placed upon Maruti Udyog Ltd vs. Narendera 1999 (1) SCC 113 as well as Hiten P. Dalal vs. Bratindranath Banerjeet, 2001 (6) SCC 16. It is further submitted that provision of section 138 N.I. Act are required to be strictly construed to bring home guilt of the appellant. Reliance is placed upon "Sri Ishwar Alloy Steels Ltd. Vs. Sayaswales Neco Ltd." (2001) 3 SCC 601. It is further submitted that a self drawn cheque cannot give a rise to the offence under Section 138 read with Section 141 NI Act as the complainant is not a holder in the due course as per Section 8 N.I. Act, in as much as cheques were not payable to the bearer or to the respondent no.2. Otherwise, these were self drawn cheques and there is no endorsement anywhere on the body of the cheques for payment of cheque in favour of the respondent no.2. The cheques in question were not bearer cheque as per Section 13 & 14 of the Negotiable CA No.18/17 Page 7/26 Susenjit Mallik vs. NCT of Delhi Instruments Act and even as per provisions of Section 15 & 16 of Negotiable Instruments Act, no endorsement is made in favour of the respondent no.2. A self drawn cheque did not tantamount to attract penal provision of Section 138 Negotiable Instruments Act. Reliance has been placed upon Dr. Jiten Barkakotivs vs. Subrata Pakangia, 2005 Cri. L. J 3598 (Gau) and V. Rama Shetty vs. N. Sasidran Nayar, 2006 Cri. L J 4297 (Kant.).
6. The appellant being one of Directors of the accused company/accused no.1 cannot face the trial as much as joint trial is to be held qua all accused directors and in the present case accused directors namely, accused no.3 and 4 were absent and without being declaring them as proclaimed offender, the trial of accused no.3 and 4 was segregated by ld. Trial court, therefore, present trial stand vitiated and the appellant deserves to be acquitted. In this regard, reliance has been placed upon Jitender Narootam Das Mehrotra & Ors. vs. State & Ors. Reported in 2003 (71) DRJ 43.
7. The appellant is not required to be present in the court while the appeal is being heard in as much as the presence of his advocate who is authorized to make submissions on behalf CA No.18/17 Page 8/26 Susenjit Mallik vs. NCT of Delhi of the appellant, is sufficient for the court to decided the appeal. In this regard, reliance has been placed upon Raghubhai Surabhai Bharwad vs. Satish Kumar Ranchhoddas Patil & anr., reported in 2003 Cri LJ 3984 (Guj. HC).
8. Per contra, ld. Counsel for the respondent no.2 has contended that the cheques in question were handed over by the accused persons in discharge of their liability in as much as the loan facility was availed by the accused persons in the form of advance against export bill (AAEB) and after availing the limit, the accused persons assured that the bills against which the facility was granted will be honoured and the said bills remained unpaid. The cheques issued by the appellant in the name of accused no.1 were already handed over to the bank in the capacity of holder in due course of the said cheques. The respondent no.2 being holder in due course presented the said cheques which were dishonoured. The cheques in question were issued in the name of accused company duly signed by appellant in the capacity of M. Director has rightly been termed as cheques issued in consideration to the respondent no.2 and respondent no.2 in the capacity of holder in due course was competent to present these cheques which ultimately dishonoured and therefore, the offence u/s 138 N.I. Act is made out. In this regard reliance is placed CA No.18/17 Page 9/26 Susenjit Mallik vs. NCT of Delhi upon "Bank of India Vs. State" 2010 (7) AD (Delhi), "Punjab & Sind Bank Vs. Vinkar Sahakari Bank Ltd." AIR 2001 SC 3641, "Adigear International & Ors. Vs. State & Anr." 2014 (206_ DLT 307. This appeal being devoid of merits deserves to be dismissed.
9. I have heard counsel for the parties and with their assistance have gone through the record of the case and the judgments filed by counsel for the parties.
10. It may be noted that the first contention made by counsel for the appellant is regarding the filing of the complaint through power of attorney holder of the respondent no.2 namely, Vinod Seth is not maintainable but this contention appears to be attractive but the same is fallacious and deserves to be rejected in as much as Hon'ble Supreme Court of India in "A.C. Narayanan Vs. State of Maharashtra" 2013 (11) SCALE 360 has mandated that if the complaint is filed by GPA holder for and on behalf of payee or holder in due course, that is good enough compliance with section 142 of N.I. Act, therefore, filing of complaint u/s 138 of N.I. Act by GPA holder of the complainant is perfectly legal and competent. The Power of Attorney Holder can depose and verify on oath in court in order to prove the contents of the complaint.
CA No.18/17 Page 10/26Susenjit Mallik vs. NCT of Delhi The Power of attorney holder must have witnesses the transactions as an agent of the payee/holder in due course or possesses due knowledge regarding the said transactions. It may be noted that during the cross examination of CW1 it has been categorically testified that he has been authorised through CW1/1 to file the present complaint and no suggestion has been given to the witness that neither he has witnesses the said transactions nor he possesses the knowledge of the transactions out of which the present criminal complaint filed u/s 138 N.I. Act has arisen. The appellant in his defence has never disputed the issuance of cheques in the name of accused company as security for the loan facility availed by accused company. Therefore, this contention is hereby rejected.
11. The next contention raised by counsel for the appellant is that self drawn cheque cannot be subject matter of the proceedings u/s 138 N.I. Act as the said cheque is neither the bearer cheque u/s 13 & 14 of N.I. Act nor bears the endorsements as per u/s 15 & 16 of the N.I. Act. It is further contended that presumption u/s 118 of N.I. Act can be raised only when factual foundation for raising such presumption has been established. In this regard it may be noted that in Ishwar Alloy (supra), Maruti Udhyog (supra) and Hiten P. Dalal (supra) it was the ratio that CA No.18/17 Page 11/26 Susenjit Mallik vs. NCT of Delhi presumption u/s 118 read with section 139 of N.I. Act must be drawn that the holder of the cheque received the cheque of the nature referred to in section 138 unless the contrary is proved. Therefore, the factual foundation for raising the above said presumption must be is established, only then the accused can rebut the said presumption by proving on evidence that holder of the cheque or holder in due course had not received the said cheque towards discharge of any liability and such rebuttal does not have to be conclusively established, meaning thereby the court must either believe the defence existed or consider its existence to be reasonably probable. As such, the above said judgment re iterates the principle of law laid down by Supreme Court in other precedent. So far as the present case is concerned, the appellant has admitted that he was a director of accused company/accused no.1 alongwith accused no.3 to 6 and appellant had also admitted his signature on the cheques in question and even in his defence it is not disputed that the cheques in question were issued for security of official loan advance against export bill (AAEB) facility.
12. Now the question arises as to whether the cheques in question were handed over to the respondent no.2 as holder in due course. It this regard, it may be noted that in the judgments CA No.18/17 Page 12/26 Susenjit Mallik vs. NCT of Delhi relied upon by counsel for the appellant namely, Dr, Jitesh Barkakoti (supra) and B. Rama (supra) the said cheques were self drawn cheque in as much as in Dr. Jitesh case the self drawn cheque was neither issued in favour of complainant (therein) nor the said cheque was endorsed in favour of the complainant (therein), therefore, the provision of section 138 & 139 of N.I. Act were held not applicable. In the same manner in B. Rama case, the cheque Ex.P1 was self drawn cheque and not drawn in favour of other person, therefore, it was held that section 138 will not be applicable in dishonour of self drawn cheque. Therefore, these judgments have no relevance to the facts of the present case in as much as in the present case, the cheques in question were issued in the name of Mallick Gold House Pvt. Ltd. (accused no.1) and although the said cheques are not endorsed in favour of respondent no.2 yet the said cheques were handed over to the respondent no.2 to adjust the amount of loan availed by accused persons for "AAEB". As such, the respondent was the holder in due course for the said self drawn cheques by appellant in the name of accused company/accused no.1. In this regard I found force in the submissions of counsel for respondent no.2 that respondent no.2 was holder in due course of cheque in question on the basis of ratio of judgments titled as Bank of India Vs. State (supra), Punjab & Sind Bank Vs. Vinkar Sahakari Bank Ltd.
CA No.18/17 Page 13/26Susenjit Mallik vs. NCT of Delhi (supra), Adigear International & Ors. Vs. State & Anr. (supra). In Adigear (supra) by taking into consideration all the aforementioned judgments it was observed as under :
"15. In Bank of India (supra), The Director of the company had issued cheques from his personal account in favour of the company so that the amount deposited in the account of the company that had availed overdraft and other facilities from the bank is utilised for discharging dues of the bank. On dishonour of the cheque, the bank filed a complaint claiming itself to be the "holder in due course". While the learned Metropolitan Magistrate issued a notice u/s 251 CrPC on the accused persons, in revision, the learned Additional Sessions Judge observed that the bank was not a holder in due course since there was no endorsement u/s 16 of the N.I. Act made on the cheque and the status of the complainant bank, under these circumstances, cannot be treated as "holder in due course". After referring to Section 9 of the N.I. Act which defines holder in due course, it was observed as under : "5. It is apparent from this definition that for being a 'holder in due course' of a bill or a cheque it was not necessary that there should be an endorsement on the bill or a cheque. 'Holder in due course' has been defined as any person, who for consideration, becomes the possessor of the promissory note or CA No.18/17 Page 14/26 Susenjit Mallik vs. NCT of Delhi cheque. There is no doubt that endorsee or the payee of such a bill or cheque are also considered as 'holder in due course', but, it is not the case that payee or endorsee alone are holders in due course. A person whose banking account is withdrawn if negotiates with his bankers a cheque, drawn by a third party, to reduce the overdraft, the banker becomes a holder for value of the cheque. The preexisting debt of the overdraft is a sufficient consideration for the negotiation of a cheque to the banker. If a person handovers cheque to the bank with the clear understanding to the bank that cheque is towards the debt payable by the company, though the cheque remains in the name of the company but the bank becomes holder of the cheque in due course. What is to be seen is that whether the bank has come into possession of the cheque for a value pursuant to a contract between the parties express or implied....................... Once it is established to the satisfaction of the Court that the cheques were issued for discharge of the debt of the company, the bank who had given this debt to the company would be considered as 'holder in due course;. The holder in due course' of cheque means any person entitled to receive or recover the amount due thereon from he parties thereto."
It was mandated further in para 21 as under :
CA No.18/17 Page 15/26Susenjit Mallik vs. NCT of Delhi "21. In view of the aforesaid, even if the cheques were issued by the petitioners in its own name but was in possession of the complainant who was entitled to receive or recover the amount due thereon, unless the contrary is proved by the petitioner, the complainant being the holder of the negotiable instruments shall be presumed to be the holder in due course."
13. Therefore, cheques issued by the appellant in the capacity of Director of accused company and in the name of accused company are rightly been termed as the cheques issued for consideration by the appellant and the respondent no.2 has rightly been terms as 'holder in due course' by ld. Trial court therefore, this contention is also rejected.
14. The next contention is that as per the mandate of section 141 of N.I. Act, respondent no.2 should have specifically pleaded and proved that the Directors including the appellant were involved in the day to day affair of the accused company, this submission has been controverted by counsel for respondent no.2 by contending that it is a pleaded case of the respondent no.2 that appellant alongwith accused no.3, 4, 5 and 6 were carrying on day today affairs of the company. It may be noted that ld. Trial court has rightly observed that accused no.5 and 6 cannot be stated to CA No.18/17 Page 16/26 Susenjit Mallik vs. NCT of Delhi be involved in day to day affairs of the company in as much as the respondent no.2 has not placed on record any document even to infer that the said accused were involved in day today affair of the accused company. The ratio of case laws Standard Chartered Bank (supra), Pooja Ravinder Devidasani (supra), A. K. Singhania (supra), Anita Malhotra (supra) and National Small Industries Corporation Ltd. (supra) is to the effect that the complaint must contain specific averments as to how accused directors were responsible for the day today affairs of the accused company so as to fasten the criminal liability on the principal of vicarious liability in as much as section 141 of N.I. Act did not make all the Directors liable for the offence. Therefore, the criminal liability can be fastened only on these directors, who at the time of commission of the offence were incharge and were responsible for the conduct of the business of the accused company.
15. In National Small Scale Industries, it was observed in para 25 as under :
"25. From the above discussion, the following principles emerge :
(i) The primary responsibility is on the complainant to make specific averments as are required under the law in the complaint so CA No.18/17 Page 17/26 Susenjit Mallik vs. NCT of Delhi as to make the accused vicariously liable. For fastening the criminal liability, there is no presumption that every Director knows about the transaction.
(ii) Section 141 does not make all the Directors liable for the offence. The criminal liability can be fastened only on those who at the time of the commission of the offence were in charge of and were responsible for the conduct of the business of the company.
(iii) Vicarious liability can be inferred against a company registered or incorporated under the Companies Act, 1956 only if the requisite statements, which are required to be averred in the complaint/petition, are made so as to make accused therein vicariously liable for offence committed by company alongwith averments in the petition containing that accused were incharge of and responsible for the business of the company and by virtue of their position they are liable to be proceeded with.
(iv) Vicarious liability on the part of a person must be pleaded and proved and not inferred.
(v) If accused is Managing Director or Joint Managing Director then it is not necessary to make specific averment in the complaint and by virtue of their position they are liable to be proceeded with.
(vi) If accused is a Director or an Officer of a company who signed the cheques on behalf of the company then also it is not necessary to make specific averment in CA No.18/17 Page 18/26 Susenjit Mallik vs. NCT of Delhi complaint.
(vii) The person sought to be made liable should be incharge of and responsible for the conduct of the business of the company at the relevant time. This has to be averred as a fact as there is no deemed liability of a Director in such cases."
16. It was further observed that in the absence of specific averments is to the role of the accused Directors and particularly in view of the acceptable material that at the relevant time accused Directors were in no way connected with the affairs of the accused company, the accused could not be prosecuted with the aid of section 141 of N.I. Act. Similarly, in A. K. Singhania (supra) no averment were found in the complaint that accused (therein) were incharge and responsible for the conduct of the business of the accused company (therein) at the time when offence was committed. In the same manner in Anita Malhotra (supra) appellant/accused (therein) was not found to be a Director of the accused company at the time of commission of offence in as much as she had resigned from the accused company as a Director in 1998 well before the relevant date i.e. in the year 2004 when the cheque in question were issued, therefore, in such circumstances, the accused (therein) were acquitted. In Standard Chartered (supra) in para 34 Hon'ble Supreme Court has CA No.18/17 Page 19/26 Susenjit Mallik vs. NCT of Delhi observed as under :
"34. Thus, considering the totality of assertions made in the complaint and also taking note of the averments put forth relating to the respondent Nos.2 and 3 herein that they are wholetime Director and Executive Director and they were I charge of day to day affairs of the Company, we are of the considered opinion that the High Court has fallen into grave error by coming to the conclusion that there are no specific averments in the complaint for issuance of summons against the said accused persons. We unhesitatingly hold so as the asseverations made in the complaint meet the test laid down in Gunmala Sales Pvt. Ltd. (AIR 2015 SC 1072) (supra)."
17. But in the present case the facts are distinguishable to the facts of the aforesaid judgments in as much as the cheques have been issued by the appellant as one of the Director of the accused company and there is specific averment in this regard in the relevant para 3 & 4 of the complaint as well as in the evidence affidavit tendered by CW1. In addition to it, the appellant is one of the Director of the accused company/accused no.1 and authorised signatory of the accused company as his signatures are admittedly appended on the cheques in question, therefore, as per observation of Hon'ble Supreme Court in National Small Scale CA No.18/17 Page 20/26 Susenjit Mallik vs. NCT of Delhi Industries case (supra) in para 25 (v) (vi), there is no need of any specific averment in complaint qua appellant being Director and authorised signatory of the accused company. Apart from that no specific role has been assigned to accused no.5 and 6 and they have been acquitted by ld. Trial court. I found no illegality in the judgment passed by ld. Trial court regarding acquittal of accused no.5 and 6.
18. Next contention is regarding not holding joint trial of the accused no.3 and 4 with appellant and therefore, non joining of the accused no.3 and 4 in the joint trial as per the mandate of section 223 CrPC , the whole of the trial stand vitiated and as such the impugned judgment and order on sentence deserves to be set aside. It is relevant to mention here that this contention is devoid of force under law in as much as the trial of accused no.3 and 4 was separated from the trial of appellant and accused no.1, 5 and 7 by ld. Trial court through order dated 22.02.2012 as the whereabouts of accused no.3 and 4 were not known. In case law titled as Jitender Narottam (supra) the matter was listed for appearance of some of the accused and for evidence in respect of the remaining accused, therefore, in the said circumstances, the said order was held illegal under law whereas in the present case, the accused no.3 and 4, trial has been segregated, therefore, the CA No.18/17 Page 21/26 Susenjit Mallik vs. NCT of Delhi case law has no applicability to the facts of the present case. Otherwise also, even if for the sake of arguments it is presumed that the order whereby the trial of accused no.3 and 4 was segregated from the trial of other accused including that of the appellant is not passed in consonance with the provision of law even then such irregularity is a curable defect as per the provision of section 464 r/w section 229 CrPC and 465 CrPC. Therefore, this contention is also rejected.
19. The last contention raised by counsel for the appellant by relying upon Raghu Bhai (supra) that the presence of the appellant is not required at the time of final disposal of the appeal is having force in law in as much as in this judgment the Hon'ble Gujarat High Court has relied upon "Bani Singh Vs. State of U.P." AIR 1994 SC 2439 and in para 13, it has been observed as under :
"13. In the aforesaid decision, the Hon'ble Supreme Court was pleased to refer to the provision made in Section 385 of the said Code during the course of the judgment in paragraph 7. After discussing the provisions made in Sections 385 and 386 of the Code, the Hon'ble Supreme Court made following observations :CA No.18/17 Page 22/26
Susenjit Mallik vs. NCT of Delhi "15. Secondly, the law expects that Appellate Court to give a hearing to the appellant or his counsel, if he is present and to the public prosecutor, if he is present, before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provides that the appellate Court shall, after pursuing the record, hear the appellant and his pleader, if he appears. It will be noticed that S. 385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader.
Section 386 then provides that the appellate Court shall after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that S. 385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant and his pleader and not to both presumably because notice to the Pleader was also considered sufficient since he was representing the appellant. So also S.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 Ss.385386 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 CA No.18/17 Page 23/26 Susenjit Mallik vs. NCT of Delhi Court does so as a matter of prudence or indulgence, it is a different matter, but 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 accusedappellant 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. We are, therefore, of the opinion and say so with respect, that the Division Bench which decided Ram Naresh Yadav's case AIR 1887 SC 1500 : (1987 Cri.LJ 1856) did not apply the provisions of Ss.385386 of the Code correctly when it is indicated that the Appellate Court was under an obligation to adjourn the case to another date if the appellant or his lawyer remained absent."
24. On the aforesaid discussion, it has to be held that the Sessions Court was perfectly justified in is posing of the appeal on merit after perusing the records and proceedings and after hearing the learned Advocate for the original complainant. The judgment of the Sessions Court in Criminal Appeal No.16/1994 cannot be treated to be illegal on the ground that the said Court need not appoint any Advocate to represent the case of the appellantconvict.
CA No.18/17 Page 24/26Susenjit Mallik vs. NCT of Delhi Therefore, this appeal can be disposed of without the presence of the appellant.
20. So far as the contention regarding defect in service of notice u/s 138 of N.I. Act and framing of notice u/s 251 CrPC as well as examination of the appellant u/s 313 CrPC is concerned, no such arguments have been addressed by counsel for the appellant at the time of hearing of the appeal and I have scanned the record and no such illegality as alleged has been found in the service of demand notice on the accused persons including the appellant, the framing of notice u/s 251 CrPC against the appellant and examination of the appellant u/s 313 CrPC, in addition to it, it is relevant to mention here that the appellant has admitted that the cheques in question were given at the time of loan was advanced by the respondent no.2 and the said cheques also bear the signatures in the capacity of authorised signatory/Director of the accused company.
21. From the above discussions, I find no ostensible reasons to taken a different view which has already been taken by ld. MM. I find no illegality in the impugned judgment and impugned order on sentence passed by the ld. MM. The appeal is CA No.18/17 Page 25/26 Susenjit Mallik vs. NCT of Delhi devoid of merits and therefore, hereby dismissed. Bail bond and surety bond of the appellant stands cancelled. Appellant is directed to surrender immediately.
Copy of this judgment be sent to the ld. trial court for the purposes of record and this appeal file be consigned to record room.
Announced in the open court today, VIJAY Digitally signed
by VIJAY
On 13th Day of April, 2018. KUMAR KUMAR DAHIYA
Date: 2018.04.19
DAHIYA 13:04:15 +0530
(Dr. V.K. DAHIYA)
SPECIAL JUDGE : CBI (PC ACT)
DWARKA COURTS/13.04.2018
CA No.18/17 Page 26/26