Delhi District Court
Acmm (Special Act) vs . on 10 February, 2023
IN THE COURT OF SH. SUSHIL ANUJ TYAGI,
ADDITIONAL SESSIONS JUDGE-04:CENTRAL,
TIS HAZARI: DELHI
DLCT01000301-2020
CA No.:13/2020
Sh. Inder Pal Singh
S/o Mr. Rajinder Singh
R/o H.No.111, Sant Pura Road,
Yamuna Nagar, Haryana-135001
Vs.
1. Registrar of Companies, NCT of Delhi and Haryana
Through its Secretary
Having its office at 61, Nehru Place
5th Floor, IFCI Tower
New Delhi-110019
2. M/s Sunview Housing Private Limited
Through its office at:
I-4/146, Sector-16, Rohini, Delhi
3. Mahmood Ali Khan
S/o Mr. Abdul Waheed,
R/o H.No.812, Mairjapur Pol,
Saharanpur, Uttar Pradesh-247121
Date of institution of Appeal : 10/01/2020
Date on which order reserved : 13/01/2023
Date on which order pronounced : 10/02/2023
ORDER
1. This is an appeal u/s 449 Cr.PC against the impugned order dated 24/10/2019 passed by Sh. Pawan Singh Rajawat, ld.
CA No. 13/2020 Inder Pal Singh Vs Registra of Companies & Ors. Page No. 1 Of 10 ACMM (Special Act), Central, Tis Hazari, New Delhi vide which the NBWs against the appellant were canceled subject to payment of cost of Rs. 30,000/- by the appellant and he was further directed to furnish the bail bonds in the sum of Rs.50,000/-.
2. The brief facts of the case as necessary to decide the present appeal are that one complaint was filed by the respondent ROC against three accused persons including the appellant herein who were summoned for the offences u/s 162/168/210(5) and 220 (3) for contravention of sections 159/166/210(3) and 220 of the Companies Act 1956. During the trial, the appellant approached the Hon'ble National Company Law Tribunal, Delhi (In short NCLT) and vide order dated 18/05/2018, the Hon'ble NCLT imposed the fine of Rs. 1 lac u/s 162 for breach of section 159 and Rs.1 lac u/s 162 for breach of section 220 of the Companies Act and it was ordered that subject to the payment of aforesaid fine of Rs 2 lacs, the offence shall stand compounded against the appellant Inderpal Singh. The appellant deposited the said fine amount vide DD dated 05/06/2018. The appellant stopped appearing before the Ld. Trial Court and due to his non appearance, the Ld. Trial Court issued NBWs against the appellant vide order dated 19/07/2019 and as the process could not be issued by the Ahlmad, NBWs were against issued on 30/08/2019. Thereafter, the appellant moved an application for CA No. 13/2020 Inder Pal Singh Vs Registra of Companies & Ors. Page No. 2 Of 10 cancellation of NBWs submitting that the matter was compounded by the Hon'ble NCLT on 18/05/2018 and that he had deposited the fine amount vide DD dated 05/06/2018 and that he was under bonafine impression that since the offences have been compounded, the matter pending before the Ld. Trial Court has also been compounded and therefore, he stopped appearing and that his non presence is neither deliberate nor intentional. The Ld. Trial Court after hearing the application of the appellant passed the impugned order dated 24/10/2019, the contents of which are as follows:-
"Considering the facts and circumstances mentioned in the application, I allow the present application.
Hence, NBW issued to the accused Inder Pal stands canceled subject to cost of Rs.30,000/-. Cost paid vide receipt No.0738013.
Keeping in view facts and circumstances of the case, accused Inder Pal is admitted to bail on furnishing PB/SB in the sum of Rs.50,000/-. Bail bond furnished and accepted."
3. Later on, vide order dated 16/10/2020 of the Ld. Trial Court, the matter was compounded qua the other two accused persons and thereafter, after receiving verification report regarding compounding from the complainant department, the matter was disposed of as compounded qua the appellant also vide order dated 05/11/2020. Now, the appeal has been filed assailing the impugned order dated 24/10/2019 of the Ld. Trial Court.
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4. Record reflects that during the pendency of the present appeal, the appellant or his counsel stopped appearing before this Court, and none appeared on behalf of the appellant on 22/01/2021, 15/06/2021, 13/07/2021, 16/11/2021, 26/03/2022, 25/05/2022, 22/08/2022 and 17/09/2022. Court notice to the appellant and his counsel was also issued vide order dated 22/08/2022 of this Court but neither of them appeared on 17/09/2022 and therefore, this Court proceeded with the present appeal.
5. The Hon'ble Supreme Court of India in the case of Kabira v. State of U.P., 1982 SCC (Crl.) 144 observed as under :
"The appeal could not be dismissed by the learned single Judge for default of appearance if the appellant was not present. The learned Judge should have appointed an advocate as amicus curiae and then proceeded to dispose of the appeal on merits."
6. In Khaili v. State of U.P., 1981 Supp SCC 75 : 1982 SCC (Cri) 143, the Honble Apex Court observed :
"The learned Advocate in the present case, however, refused to argue the case and consequently the learned Judge went through the record of the case and decided the appeal. Now one thing is clear that howsoever diligent the learned Judge might have been and however careful and anxious to protect the interests of the appellants, his effort could not take the place of an argument by an advocate appearing on behalf of the appellants. We think that in a case such as this, what the learned Judge should have done was to appoint an advocate amicus curiae and then proceed to dispose of the appeal on merits."
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7. In a subsequent decision in Ram Naresh Yadav v. State of Bihar, AIR 1987 SC 1500 : (1987 CriLJ 1856) the Hon'ble Supreme Court of India has observed as under at page 1856 of Cri LJ :-
"It is no doubt true that if the counsel do not appear when criminal appeals are called out, it would hamper the working of the Court and create a serious problem for the Court and if this happens often the working of the Court would become well nigh impossible. We are fully conscious of the dimension of this matter but in criminal matters the convict must be heard before their matters are decided on merits. The Court can dismiss the appeal for non-prosecution and enforce the discipline or refer the matter to the Bar Council with the same in view but the matter can be disposed of on merits only after hearing the appellant or his counsel, the Court might as well appoint a counsel at State cost to argue on behalf of the appellants."
8. Accordingly, this Court appointed Advocate Sh. Akash Saini, Advocate, Mobile No. 9650944739, Enrollment No. D/1204/2008, Chamber No. 23, Western Wing, Tis Hazari Courts, Delhi, as Amicus Curiae at the expense of the State to assist the Court by arguing the appeal on behalf of the appellant.
9. An application u/s 5 of the Limitation Act has also been filed alongwith the appeal seeking condonation of delay of 31 days in filing the present appeal. It is submitted that the appellant has applied for the certified copy and has received the same on 08/11/2019 and that the appellant approved the draft of the appeal and instructed his counsel CA No. 13/2020 Inder Pal Singh Vs Registra of Companies & Ors. Page No. 5 Of 10 to proceed further but the counsel has gone out of Delhi for his sister's marriage and that when he returned, the Courts got closed due to winter break and that immediately after reopening the present appeal has been filed and therefore, it is prayed that the delay of 31 days may kindly be condoned.
10. Heard on the application. Sufficient cause has been shown by the appellant for the delay in filing the present appeal. Taking a lenient view, the delay in filing the present appeal is hereby condoned and the application is allowed.
11. This Court heard the arguments on the present appeal on behalf of the revisionist which have been advanced by the ld. Amicus Curiae.
12. It is contended that the matter qua the appellant had already been compounded before the Hon'ble NCLT on 18/05/2018 and the appellant had already paid the fine amount as imposed by the NCLT on 05/06/2018 and the matter stood compounded. It is further submitted that it was the duty of the ROC to inform the Court regarding the compounding of the matter and under bonafine impression, the appellant had stopped appearing before the Ld. Trial Court as the matter was already compounded. It is argued that the procedure laid down in section 446 Cr.PC regarding the forfeiture of the bail bonds have not been followed by the Ld. Trial Court. It is argued that the ld. Trial Court has arbitrarily and erroneously forfeited the CA No. 13/2020 Inder Pal Singh Vs Registra of Companies & Ors. Page No. 6 Of 10 bail bonds of Rs.30,000/- furnished by the appellant and also forced the appellant to file fresh bail bonds of Rs.50,000/-. It is therefore, prayed that impugned order of the ld. Trial Court may be set aside and the registry of the Court may be directed to refund the imposed cost of Rs.30,000/- to the appellant.
13. In the present case, the appellant had furnished bail bonds in the sum of Rs.30,000/- for his appearance before the Ld. Trial Court. Since the matter was compounded before the Hon'ble NCLT on 18/05/2018, the appellant stopped appearing before the Ld. Trial Court and consequently, the NBWs were issued against him. The Ld. Trial Court while cancelling the NBWs on the application of the appellant imposed cost of Rs.30,000/- and also directed him to furnish fresh bail bonds in the sum of Rs.50,000/-.
14. It is apparent that the Ld. Trial Court though cancelled the NBWs which were issued against the appellant, however, at the same time the Ld. Trial Court forfeited the bail bonds of Rs.30,000/- furnished by the appellant. The procedure regarding forfeiture of bond has been provided u/s 446 Cr.PC which reads as under:-
(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 CA No. 13/2020 Inder Pal Singh Vs Registra of Companies & Ors. Page No. 7 Of 10 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.
(2) If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as if such penalty were a fine imposed by it under this Code: Provided that where such penalty is not paid and cannot be recovered in the manner aforesaid, the person so bound as surety shall be liable, by order of the Court ordering the recovery of the penalty, to imprisonment in civil jail for a term which may extend to six months.
(3) The Court may, after recording its reasons for doing so, remit any portion of the penalty mentioned and enforce payment in part only. (4) Where a surety to a bond dies before the bond is forfeited, his estate shall be discharged from all liability in respect of the bond.
(5) Where any person who has furnished security under section 106 or section 117 or section 360 is convicted of an offence the commission of which constitutes a breach of the conditions of his bond, or of a bond executed in lieu of his bond under section 448, a certified copy of the judgment of the Court by which he was convicted of such offence may be used as evidence in proceedings under this section against his surety or sureties, and, if such certified copy is so used, the Court shall presume that such offence was committed by him unless the contrary is proved.
15. The bare glance at the aforesaid section would reveal that if it is proved to the satisfaction of the Court that the bond for appearance has been forfeited, the Court shall record CA No. 13/2020 Inder Pal Singh Vs Registra of Companies & Ors. Page No. 8 Of 10 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 should not be paid. If sufficient cause is not shown and the penalty is not paid, the Court may proceed to recover the same as fine.
16. In the present case, the impugned order reveals that the grounds for proof of forfeiture of bond have not been recorded by the Ld. Trial Court. The ld. Trial Court has not recorded it's satisfaction regarding the forfeiture of the bond. The impugned order not even records that the bonds have been forfeited. Even though, it is presumed that the bonds were proved to be forfeited, then also the Court ought to have recorded the grounds of such proof and ought to have called upon the appellant to show cause why the penalty may not be imposed upon him. It is apparent that no show cause has been given to the appellant before imposing the penalty of Rs.30,000/- which was in the tune of bond amount. The appellant had already compounded the matter before the Hon'ble NCLT and the appellant being a lay man, the reason that he was under bonafide impression that the matter is over seems sufficient to drop the proceedings against him. Thus, his non appearance on one date of hearing cannot be said to be a deliberate one. The forfeiture of bail bonds furnished by the appellant due to his non appearance on a single date by the impugned order of the Ld. Trial Court appears to be harsh and onerous.
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17. In the given facts and circumstances, the impugned order dated 24/10/2019 of the Ld. Trial Court does not find to be justified and is hereby set aside. The appeal is accordingly, allowed. The cost of Rs.30,000/- deposited by the appellant vide receipt No. 0738013 be returned back to the appellant.
18. The appeal stands disposed off in above terms.
19. The TCR be sent back to the Ld. Trial Court alongwith the copy of this order.
20. Appeal file be consigned to the Record Room.
Announced in the open Court on 10th February, 2023 (SUSHIL ANUJ TYAGI) ASJ-04/CENTRAL/DELHI 10/02/2023MK CA No. 13/2020 Inder Pal Singh Vs Registra of Companies & Ors. Page No. 10 Of 10