Delhi District Court
Manish Premji Soni vs Mohd Vasim on 28 November, 2023
CNR No. DLNE01-002656-2023
Manish Premji Soni v. Mohd. Vasim
Crl. Appeal No.78/23, PS Bhajanpura
Judgment dated 28.11.2023
DLNE010026562023
IN THE COURT OF SH. PULASTYA PRAMACHALA
ADDITIONAL SESSIONS JUDGE-03,
NORTH-EAST DISTRICT,
KARKARDOOMA COURTS: DELHI
Criminal Appeal No. : 78/2023
Under Section : 449 Cr.P.C.
Police Station : Bhajanpura
Complaint Case No. : 1048/2019
CNR Nos. : DLNE01-002656-2023
In the matter of: -
Sh. Manish Premji Soni
S/o. Sh. Premji Soni,
R/o. B-403, Padmavathi, CHS Dumping Road,
Mulund West, Near Croma,
Mulund, Mumbai, Maharashtra.
...Appellant
Versus
Mohd. Vasim
S/o. Mohd. Rais Khan,
R/o. H.No. B-1892/1,
Near Shishu Niketan Public School,
Subhash Mohalla, North Gonda, Delhi-110053.
...Respondent
Date of Institution : 01.09.2023
Date of reserving order : 09.11.2023
Date of pronouncement : 28.11.2023
Decision : Appeal is allowed.
Digitally signed
by PULASTYA
Page 1 of 7 (Pulastya Pramachala)
PULASTYA PRAMACHALA
PRAMACHALA
ASJ-03, North-East
Date: District,
Karkardooma2023.11.28
Courts, Delhi
11:11:38 +0530
CNR No. DLNE01-002656-2023
Manish Premji Soni v. Mohd. Vasim
Crl. Appeal No.78/23, PS Bhajanpura
Judgment dated 28.11.2023
JUDGMENT
1. Present appeal has been preferred against impugned orders dated 12.07.2023 and 10.04.2023 passed by ld. MM-01, North-East District, Karkardooma Court, Delhi, in the case titled as Mohd. Vasim v. Manish Premji Soni, bearing Complaint Case (CT) No. 1048/19, under Section 138 Negotiable Instruments Act, 1881 (hereinafter referred to as the Act).
2. Vide impugned order dated 10.04.2023, trial court issued NBW against appellant herein for his non-appearance. Trial court also forfeited the bail bond and issued directions for registration of FIR against appellant u/s. 229A IPC. Trial court issued warrants of attachment against appellant herein for recovery of Rs.1 lakh on forfeiture of bail bonds. Trial court also recorded that according to report received from the bank the FDR furnished with surety bond on 25.03.2023, was withdrawn on 26.03.2023 itself. Trial court also issued bailable warrant against his surety.
3. Thereafter, vide order dated 12.07.2023 trial court stayed NBW against appellant till 12.09.2023, subject to deposit of Rs.1 lakh by appellant within seven days from 12.09.2023. Trial court also recorded the report sent by SHO PS Farsh Bazar about registration of FIR No.286/23 u/s. 229A IPC.
4. Being aggrieved of the impugned order, appellant has preferred this appeal on the following grounds :-
● That trial court failed to appreciate that arrest of appellant/ accused was illegal or unlawful and the subsequent proceedings have also become illegal.Digitally signed by PULASTYA PRAMACHALA
PULASTYA(Pulastya Page 2 of 7 Pramachala) PRAMACHALA Date:
ASJ-03, North-East District, 2023.11.28 Karkardooma Courts,+0530 11:11:48 Delhi CNR No. DLNE01-002656-2023 Manish Premji Soni v. Mohd. Vasim Crl. Appeal No.78/23, PS Bhajanpura Judgment dated 28.11.2023 ● That impugned order dated 10.04.2023 is consolidated order, whereby due to non-appearance of appellant, trial court forfeited the bail bonds and sent the same to SHO PS Farsh Bazar for registration of FIR against appellant u/s. 229A IPC, without issuing notice as prescribed u/s. 446 Cr.P.C. ● That trial court failed to take judicial notice of the fact that a show cause notice u/s. 446 Cr.P.C. was mandatory prior to forfeiting of the bonds and before issuing the recovery warrant. ● That trial court failed to appreciate the law laid down by Allahabad High Court in Criminal Appeal No.1126 of 2016, titled as Jamuna Deen and Anr. v. State of U.P. (2016) 03 AHC CK 0125, wherein court held that: -
"8. First, I would like to produce sub-section 1 of Section 446, Cr.P.C., which reads as under:-
"446. Procedure when bond has been forfeited.-(1)Where a bond under this Code is for appearance, or for production of property, before a Court and it is proved to the satisfaction of that Court or of any Court to which the case has subsequently been transferred, that the bond has been forfeited, or where, in respect of any other bond under this Code, it is proved to the satisfaction of the Court by which the bond was taken, or of any Court to which the case has subsequently been transferred, or of the Court of any Magistrate of the first class, that the bond has been forfeited, the Court shall record the grounds of such proof, and may call upon any person bound by such bond to pay the penalty thereof or to show cause why it should not be paid."
Explanation: A condition in a bond for appearance, or for production of property, before a Court shall be construed as including a condition for appearance, or as the case may be, for production of property, before any Court to which the case may subsequently be transferred.
9. Afore-quoted sub-section reveals that forfeiture of the bond has to precede the issue of notice under Section 446, Cr.P.C. ..........
10. From the perusal of the annexure-1 to the Supplementary Affidavit I also find that notices under Section 446, Cr.P.C. issued to the appellants were not in proper form. In Schedule 2 of the Cr.P.C. Form No. 48 has been given, which prescribes the format in which notice is required to be given to the surety. The notice issued by the learned trial Judge is not in the proper format, as referred above.
11. Since the order suffers illegality on two score, I am not able to accept the arguments advanced by the learned AGA and in my opinion, the appeal has substance and it deserves to be allowed."
Page 3 of 7 (Pulastya Pramachala) Digitally signed ASJ-03, North-East by PULASTYADistrict, Karkardooma PULASTYA Courts, Delhi PRAMACHALA PRAMACHALA Date: 2023.11.28 11:11:57 +0530 CNR No. DLNE01-002656-2023 Manish Premji Soni v. Mohd. Vasim Crl. Appeal No.78/23, PS Bhajanpura Judgment dated 28.11.2023
● That trial court failed to appreciate the law laid down by Allahabad High Court in Criminal Appeal No. 2322 of 2011, titled as Banarasi Lal Vishwakarma and Anr. v. State of U.P. (2011) 04 AHC CK 0107, wherein court has held that: -
"In such circumstances the sureties cannot be penalised if the accused appeared subsequently for facing trial. The court below while separating the proceedings u/s 446 Code of Criminal Procedure and directing to register a case by an order dated 1.10.2010 has also issued notices for recovery in the same breath. u/s 446 Code of Criminal Procedure show cause notice is mandatory prior to forfeiting the bonds and before issuing the recovery warrant. The order sheet of the case does not indicate that the bonds have been forfeited. It is the duty of the Court to give a notice to the person whose bond is or has been forfeited, calling upon him either to pay the penalty or to show cause why it should not be paid. If he pays the penalty in pursuance of the notice, the matter ends. If he does not pay the penalty and offers some explanation showing reasonable causes of non appearance of the accused, the Court has to consider the causes and pass a reasoned order thereon. If the cause shown is not sufficient the amount of the penalty should be determined remains unpaid, the Court has power to make recovery of the penalty as fine. Nothing such has happened as is evident from the order sheet itself and directly an order for recovery has been issued against the sureties, therefore, the order passed by the court below is unsustainable and as such cannot be upheld and is liable to be set aside. The appeal succeeds and is allowed and the recovery proceedings if any held in pursuance of the order is set aside."
● That trial court failed to issue any notice to the appellant and forfeited the bail bonds on only a single date non appearance. ● That trial court in its order dated 10.04.2023 erred in observing that FDR given by the surety had been withdrawn, whereas the record clearly showed that the surety had deposited RC of his vehicle and not the FDR.
● That trial court failed to take into consideration that the appellant had appeared on next date of hearing i.e. 12.07.2023 on its own and gave a plausible explanation for his non-appearance on 10.04.2023, still trial court imposed fine of Rs.1,00,000/- on appellant without recording his submissions. Trial court did not give an opportunity to be heard, which is against the principle of natural justice.
Digitally signed by PULASTYA PRAMACHALA Page 4 of 7 PULASTYA(Pulastya Pramachala) PRAMACHALA Date:
ASJ-03, North-East District, 2023.11.28 Karkardooma Courts, Delhi 11:12:06 +0530 CNR No. DLNE01-002656-2023 Manish Premji Soni v. Mohd. Vasim Crl. Appeal No.78/23, PS Bhajanpura Judgment dated 28.11.2023 ● That trial court did not appreciate the submissions made by appellant and their poor financial condition, and passed the impugned orders in a mechanical manner.
5. In support of his contentions, ld. counsel for appellant relied upon certain case laws, which are as follows: -
● Ravinder Lal Airi v. S. Shalu Construction Pvt. Ltd. & Ors. Crl. M.A. 1951/2023 decided on 24.01.2023 by High Court of Delhi.
● Nishu Wadhwa v. Siddharth Wadhwa & Anr. Crl. M.A. No.6591/2016, decided on 10.01.2017 by High Court of Delhi.
● Raheem Shah & Anr. v. Govind Singh & Ors., Civil Appeal No.4628 of 2023, decided on 24.07.2023 by Supreme Court. Arguments: -
6. Sh. Nishchal Joshi, ld. counsel for appellant argued on the lines of plea taken by him in the grounds of appeal. Ld. counsel for appellant submitted that ld. MM did not follow the mandate of law and straightaway issued warrant of attachment for recovery of penalty amount, though he was duty bound to issue show cause notice to seek explanation from the appellant before imposing any penalty.
7. Sh. Abid Husain, ld. counsel for respondent argued that accused/respondent herein had been deliberately delay the proceedings. It was further argued that ld. MM was justified in passing the impugned orders as respondent herein was playing game of hide and seek.
Findings: -
8. Section 446 Cr.P.C. has already been mentioned herein-above. In the grounds though appellant has taken several grounds, but the Digitally signed Page 5 of 7 (PulastyabyPramachala) PULASTYA PULASTYA PRAMACHALA ASJ-03, North-East District, PRAMACHALA Karkardooma Date:
Courts, Delhi 2023.11.28 11:12:15 +0530 CNR No. DLNE01-002656-2023 Manish Premji Soni v. Mohd. Vasim Crl. Appeal No.78/23, PS Bhajanpura Judgment dated 28.11.2023 issue revolves around compliance of provision u/s 446 Cr.P.C. Therefore, I shall discuss the relevant proceedings only. As per record, appellant had not appeared before the trial court and warrants issued against him were also returned back unexecuted in the past. Ld. MM gave directions to higher officers of the police to take sufficient steps and finally appellant was arrested and produced before Duty MM on 25.03.2023. He was released on bail on his furnishing bail bond in the sum of Rs. 1 lac. Bail bond included personal bond of appellant and surety bond of surety and each bond was furnished in the sum of Rs. 1 lac. Appellant did not appear before the trial court on the next date fixed i.e. 10.04.2023.
9. Ld. MM in these circumstances passed the impugned order dt.
10.04.2023. Though, it is apparent that omission of appellant to appear on very next date after release on bail, was in fact disturbing especially when appellant had not put in his appreance before trial court for a long period, before his arrest. But, at the same time it is also apparent that procedure u/s 446 Cr.P.C. was not adopted by ld. MM. No notice under Section 446 Cr.P.C. was given to the appellant herein before imposing the penalty. The order directing the issuance of warrant of attachment for recovery of the penalty, was in ignorance to the mandate of law u/s 446 Cr.P.C., hence, impugned order dt. 10.04.2023 cannot be upheld.
Resultantly, the consequent order dt. 12.09.2023 is also not sustainable. Therefore, both aforesaid orders and other Digitally signed by PULASTYA PRAMACHALA PULASTYA (Pulastya Page 6 of 7 Pramachala) PRAMACHALA Date: District, ASJ-03, North-East 2023.11.28 Karkardooma Courts,+0530 11:12:25 Delhi CNR No. DLNE01-002656-2023 Manish Premji Soni v. Mohd. Vasim Crl. Appeal No.78/23, PS Bhajanpura Judgment dated 28.11.2023 subsequent order for recovery of penalty from appellant, are hereby set aside. The appeal is, accordingly allowed.
10. Ld. MM shall afford an opportunity to the appellant to show cause as to why not penalty be imposed on him, on forfeiture of his personal bond. Ld. MM shall decide afresh the issue of imposition of penalty upon the appellant, after appreciating his plea, in accordance with law u/s 446 Cr.P.C. It is further made clear that since the appellant is now well aware of the proceedings taken place resulting into forfeiture of bail bond, there shall not be any need of issuing notice u/s 446 Cr.P.C. The appellant shall file his explanation within the time given by ld. MM.
11. Copy of this judgment be sent to the trial court with TCR. File of appeal be consigned to record room, as per rules.
Digitally signed by PULASTYAPULASTYA PRAMACHALA PRAMACHALA Date:
2023.11.28 11:12:33 +0530 Announced in the open court (PULASTYA PRAMACHALA) today on 28.11.2023 ASJ-03(North East) (Judgment contains 7 pages) Karkardooma Courts/Delhi Page 7 of 7 (Pulastya Pramachala) ASJ-03, North-East District, Karkardooma Courts, Delhi