Delhi District Court
M/S Leo Travels vs Narinder Dhyani on 19 December, 2020
1
IN THE COURT OF SH.DINESH KUMAR SHARMA
PRINCIPAL DISTRICT & SESSIONS JUDGE
NEW DELHI
In the matters of :
Criminal Appeal No. 191/19, 192/2019, 193/2019, 194/2019
1. M/s Leo Travels
Through Representative Sandeep Jaswal
2. Sandeep Jaswal S/o Sh. Gopal Singh
R/o V.P.O. Saghnai, Tehsil Ghanari
Distt. Una, Himachal Pradesh
.....Appellants
Versus
Narinder Dhyani
S/o Sh. K.M. Dhyani
R/o M40/32, Moti Bagh1
New Delhi110021 .....Respondent
Date of filing appeals : 09.09.2019
Date of arguments : 16.12.2020
Date of judgment : 19.12.2020
AND
In the matters of :
Criminal Appeal Nos. 31/19, 32/19, 33/19 & 34/19
Narinder Dhyani
S/o Sh. K.M. Dhyani
R/o M40/32, Moti Bagh1
New Delhi110021 .....Appellant
Versus
Sanjeep Jaswal S/o Sh. Gopal Singh Jaswal
R/o 160A/A2, Mayur Vihar
Phase3, New Delhi .....Respondent
CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19
2
Date of filing appeals : 10.05.2019
Date of arguments : 19.12.2020
Date of judgment : 19.12.2020
JUDGMENT
1. Vide this common judgment, I propose to dispose of the aforesaid criminal appeals bearing nos. 191/19, 192/19, 193/19 & 194/19 against the impugned judgment dated 27.03.2019 passed in Complaint Case bearing Nos. 40319/2016, 20660/2016, 21678/16 & 27862/2016, vide which, the appellants have been held guilty for the offence under Section 138 of the Negotiable Instrument Act. Vide order on sentence dated 05.04.2019, the appellant Sandeep Jaswal was sentenced to undergo simple imprisonment of six months. The appellant Sandeep Jaswal was also sentenced to pay a fine of Rs.2,24,440/ in CC No. 40319/16; Rs.2,93,432/ in CC No.20660/16; Rs.2,62,344/ in CC No. 21678/16 & Rs.2,95,416/ in CC No. 27862/16.
2. The present appeals have been filed on 09.09.2019. Along with the appeal, an application under Section 5 of the Limitation Act has also been filed for condonation of delay.
3. Article 115 of the Limitation Act provides a limitation of 30 days for filing of the appeal against the order CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 3 of the Ld. MM. The order on sentence being passed on 05.04.2019, the appeals should have been filed by 05.05.2019, however, the appeals were filed on 09.09.2019. In the application under Section 5 of the Limitation Act, the appellant has submitted that he shifted to Himachal Pradesh in 2010 and after receiving the copy of the judgment and order on sentence on 05.04.2019, the appellant went to his native place at Himachal Pradesh to take care of his 82 years old father and could not visit Delhi due to financial problem being unable to afford travel and accommodation expenses. It has further been submitted that for the above said reason, the appellant was unable to engage a counsel for filing the present appeals. The appellant also could not file the appeal on time as the complete trial court record was not available and thus, he applied for the certified copies. The certified copies were prepared on 22.06.2019 and thereafter, the appellant started searching for a counsel for filing these appeals, but most of the counsel were not available due to summer vacations. Hence, the appellant went to his native place again. In July, the appellant again visited Delhi and engaged the present counsel for filing these appeals and handed over all the relevant documents to him. However, the appeal could not be presented in July and August due to CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 4 financial problem of the appellant as he was unable to afford frequent travel and accommodation expenses. The appellant submitted that the delay in filing the appeals was unintentional, and therefore same may be condoned.
4. Sh. Gurpreet Singh, Ld. Counsel for the appellant has submitted that the delay in filing the present appeals was totally unintentional and for the reasons beyond the control of the appellant. It has been submitted that the delay may be condoned and the present case may be considered on merits.
5. Per contra, Ld. Counsel for the respondent has submitted that the reasons for delay as explained by the appellant are totally false and have no basis and that no documents have been placed on record in support of the contentions. It has been further submitted that the appellant has misused the process of the law and the appeals are liable to be dismissed outrightly on the ground of limitation.
6. I have also heard the Ld. Counsel for the appellant and Ld. Counsel for the respondent on the merits of the case.
7. It is pertinent to mention here that respondent herein had also filed four criminal appeals bearing nos. 31/19, 32/19, 33/19 & 34/19, which were pending in the court of Sh.
CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 5 Dharmender Rana, Ld. ASJ. In order to avoid any contradiction, the said appeals have been withdrawn and retained by this court. This court proposes to dispose of said appeals bearing nos. 31/19, 32/19, 33/19 & 34/19 also by this order.
8. In brief, the facts are that the complainant has alleged that in the year 2005, the complainant had developed friendly relationship with accused no. 2&3 and they assured the complainant to invest his hard earned money in their business by purchasing one Innova Car bearing No. DLIVB 3315 with taxi permit on All India basis. The accused persons assured the complainant that the said vehicle will be the responsibility of accused persons. It was further represented that as and when the payment is realized by them from their client companies on account of services rendered by the said vehicle of the complainant, the accused no.2&3 shall issue cheques from the account of the accused no.1 M/s Leo Travels. On this, the accused persons started availing the services of the vehicle of the complainant and also took cash from the complainant on the pretext of requirement for petrol, driver salary and for the growth of their business. The accused no.2&3 issued following 11 cheques :
CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 6 Sl. No. Cheque No. Dated Amount
1. 409595 10.12.2007 Rs.44,940/
2. 723853 05.01.2008 Rs.60,000/
3. 409597 10.02.2008 Rs.41,776/
4. 409590 07.07.2007 Rs.52,220/
5. 723852 15.07.2007 Rs.60,000/
6. 745310 03.09.2007 Rs.14,920/
7. 723854 05.10.2007 Rs.70,000/
8. 409594 10.11.2007 Rs.46,252/
9. 409591 10.08.2007 Rs.15,728/
10. 409592 10.09.2007 Rs.49,236/
11. 409593 10.10.2007 Rs.47,744/
9. The cheques bearing nos. 409595, 723853 and 409597 were the part of the Complaint Case No. 20660/2016. The cheques bearing nos. 409590 and 723852 were the part of the Complaint Case No. 40319/16. The cheques bearing nos. 745310, 723854 and 409594 were the part of the Complaint Case No. 21678/2016. The cheques bearing nos. 409591, 409592 and 409593 were the part of the Complaint Case No. 27862/2016.
10. It is pertinent to mention here that the cheques were signed by the accused Sanjeev Jaswal. The cheques on being presented to the bank were returned back with the remarks 'Funds Insufficient' or 'Payment Stopped by Drawer'. The complainant issued legal notice dated 22.04.2008 which CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 7 has duly been served upon the accused persons. However, the accused persons failed to make the payment of the cheques and therefore, the complaint under Section 138/141 N.I. Act was filed. The accused persons were summoned and notice under Section 251 Cr.PC was served upon the accused persons on 04.08.2008. The accused persons simply stated that 'plead not guilty and have defence to make.'
11. The complainant filed his affidavit reiterating the averments made in the complaint. In the crossexamination of the complainant, the complainant reiterated that on the assurance of the accused persons, he got financed the Innova Car from ICICI Bank. Accused persons have taken the vehicle from the showroom and started using it for their travelling business. The complainant further stated in the crossexamination that the accused gave him 14 cheques of different dates on different occasions. The cheques were duly filled, however, they got dishonoured upon presentation to the bank. The complainant also examined the witness from the bank.
12. In the statement under Section 313 Cr.PC, the accused Sanjeev Jaswal denied all the allegations and stated that the firm was dissolved on 31.03.2007. The accused further stated that he does not owe any amount to the CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 8 complainant and has no role to play in issuance of cheques.
13. Accused no. 3 Sandeep Jaswal in his statement under Section 313 Cr.PC denied the entire incriminating evidence and for the first time stated that he had issued the said cheques for purchase of car. However, after three days, the complainant sold his car to one Randeep Singh, who was his driver. On 07.12.2007, complainant presented the said cheques for encashment in his bank and he received a call from his bank regarding insufficient amount. Accused no.3 further stated that he went to his bank and verbally stopped the payment from his account. Accused has further stated that he used to give expenses to the driver of the complainant Randeep Singh and Gagan Kumar and also stated that the respondent firm was run by him and that accused Sanjeev Jaswal has no role in issuance of the cheques. He also stated that he does not owe any amount to the complainant and had already repaid whatever was due to the complainant.
14. The accused persons examined themselves i.e. Sanjeev Jaswal & Sandeep Jaswal as DW1&2 respectively besides examining Sh. Randeep Singh and Sh. Gagan Singh as DW3&4.
15. It is pertinent to mention here that only at this stage, accused no. 2 in his affidavit Ex. DW1/A stated that CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 9 partnership firm in the name of M/s Leo Travels was entered into between him and accused no. 3 on 01.04.2003, which was dissolved vide Dissolution Deed dated 01.04.2007 and therefore, he has no role in the issuance of cheques in question.
16. Accused no. 2 stated that subsequent to the dissolution of the partnership firm, he had no relation with the company or with the dealing of the firm and/or with accused no. 3. Accused no.2 also stated that even otherwise, he had no role in the transaction between the complainant and accused no.1&3 as the Memo of Understanding dated 31.10.2010 Ex. DW1/2 was signed by accused no.3. Accused no.2 stated that this fact was admitted by accused no.3 in his affidavit filed in CC No. 3751/11. In the crossexamination, accused no.2 admitted that he did not state the facts regarding the dissolution of the firm at the time of framing of notice under Section 251 Cr.PC on 26.07.2008. The accused also denied the suggestion that this story of dissolution of the firm has been concocted only to avoid the liability.
17. Accused no. 3 Sandeep Jaswal also filed the affidavit and stated that he had issued the cheque for the purchase of vehicle, however, later on the complainant sold the vehicle to his driver Randeep Singh. The accused stated CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 10 that the complainant refused to return the cheques despite being asked many times. In the crossexamination, the accused admitted that he has not filed any document to support his contention made in the affidavit. Though, the accused stated that he was maintaining the records of tour and travel services which included the vehicle numbers and other details of the parties and the duration, but the same were not proved on record in accordance with law.
18. Accused no. 3 also admitted that he had not informed about the dissolution of the partnership firm till the application under Section 315 Cr.PC was filed. Accused no.3 denied the suggestion that dissolution deed had been forged in order to avoid the liability of accused no.2.
19. Before proceeding further, it is also important to note that Sh. Randeep Singh, to whom the accused claiming that the vehicle was sold by the complainant, was examined as DW3. However, in his evidence, he did not speak even a single word about it. Sh. Randeep Singh simply stated that he was the driver with the accused company from the year 2000 till 2007 and used to drive the vehicle of the company including the vehicle of the complainant. Sh. Randeep Singh further stated that he used to drive the vehicle without any salary and used to fill fuel etc. in the vehicle from the credit CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 11 card of Sh. Narender Dhyani, who had handed over the same to him for the said purpose. In the crossexamination, DW3 admitted that during the period of his employment, accused no.3 used to look after the firm and used to deal with him.
20. It is interesting to note that only in the cross examination, DW3 admitted that accused no.3 is his close relative i.e. sister's husband.
21. Similarly, DW4 Sh. Gagan Singh also deposed to the fact that he was the driver with the accused company M/s Leo Travels till 2005 and accused no.3 used to give him salary. In the crossexamination, there was nothing material available to contradict the case of the complainant.
22. I have heard the submissions made by the parties and have perused the record carefully.
23. It is a settled proposition that courts have to be liberal while considering the point of limitation. However, the concept of being liberal cannot be used for the advantage of mischievous litigants. In the present case, the complaint case was filed in January 2008 and finally, it was concluded in March 2019, resulting in the conviction of the appellant. Briefly stating the facts, the appellant was engaged in the business of Tours Travel and Taxi services. In the year 2005, the respondent came into contact with the appellant and a CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 12 Innova Car bearing registration no. DL1VB3315 was attached to the agency of the appellant. As per appellants themselves, the respondent/complainant had purchased a brand new Innova Car for the purpose of tour and travel agency and appellant agreed to avail the services of the car of the respondent. The appellant continued to avail the services of the respondent till 2007.
24. It is also pertinent to mention here that the complaint was filed filed against M/s Leo Travels, Sanjeev Jaswal and Sandeep Jaswal. However, Ld. Trial Court acquitted accused Sanjeev Jaswal on the ground that he is not vicariously liable under Section 141 Negotiable Instrument Act as the cheques did not bear his signatures.
25. In respect of the defence taken by accused Sandeep Jaswal, who is representing M/s Leo Travels, that the cheque in question were not issued for the transaction, as alleged by the complainant, but for the purchase of vehicle in question and the complainant sold the said vehicle to his driver Randeep Singh but failed to return the cheque. Ld. Trial Court inter alia held that in the plea of defence taken at the time of notice under Section 251 Cr.PC, the accused persons did not dispute the transaction, as alleged by the complainant, and claimed that they had already made the CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 13 payment to the complainant. In the statement of accused recorded under Section 313 Cr.PC also, the accused persons claimed that they had already made the due payment. The cheques were issued to the complainant for purchase of the said car, which was subsequently sold by the complainant to his driver Randeep Singh. The same defence was reiterated by the appellant while appearing as DW2.
26. Ld. Trial Court found that the defence put up by the appellant was an after thought. Ld. Trial Court also noted that appellant did not put any of such case to the defence witnesses examined by the respondent. It is also pertinent to mention here that the Ld. Trial Court also noted that appellant at no point of time took any steps for demanding the cheques in question back from the respondent/complainant.
27. The appellant has challenged the impugned order on the ground that the same is based on conjectures and surmises and has been passed in a biased manner on assumption and presumption. It has further been alleged that the Ld. Trial Court has failed to appreciate the provisions of the Negotiable Instrument Act in the correct perspective and rather same has been misconstrued. The appellant has alleged that the testimony of the complainant was contrary and was not reliable to base the conviction on the same. The appellant CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 14 has also stated that the Ld. Trial Court has illegally disbelieved the statement made by the accused persons on oath. It has further been submitted that there was no legally enforceable debt or liability on the part of the appellant and the respondent has misused the cheques issued for the purchase of the car.
28. The appellants have challenged the impugned oder predominantly on the ground that the Ld. Trial Court has not considered their defence properly and has failed to take into account that presumption in favour of the complainant has duly been rebutted.
29. During the course of the submission, Ld. Counsel for the appellant submitted that the appellants have also moved an application under Section 391 Cr.PC for leading evidence. It has been submitted that appellant no.2 had filed the bank statement on record before the Ld. Trial Court. However, inadvertently, the said statement could not be tendered in the evidence of DW2 before the Ld. Trial Court. The official from the concerned bank could not be summoned as a defence witness to certify the said statement.
30. Ld. Counsel for the appellant has invited the attention of the court towards the copy of the bank statement CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 15 placed on record. The attention has also been invited towards the various entries in the bank account whereby the payments have been made to the complainant Sh. Narender Dhyani and drivers Sh. Randeep Singh and Sh. Gagan Singh. Ld. Counsel has submitted that the aforesaid evidence is essential for the just decision of the court and therefore, the same may be allowed.
31. In respect of his contention, Ld. Counsel has cited the judgment of the Hon'ble Supreme Court in the case of Brig. Sukhjeet Singh (Retd.) vs. State of UP & Ors., Crl. Appeal no. 148/2019, decided on 24.01.2019.
32. It is pertinent to mention that Section 391 Cr.PC provides as under : "391. Appellate Court may take further evidence or direct it to be taken.
(1) In dealing with any appeal under this Chapter, the Appellate Court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself, or direct it to be taken by a Magistrate, or when the Appellate Court is a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by the Court of Session or the Magistrate, it or he shall certify such evidence to the Appellate Court, and such Court shall thereupon proceed to dispose of the appeal.
CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 16 (3) The accused or his pleader shall have the right to be present when the additional evidence is taken. (4) The taking of evidence under this section shall be subject to the provisions of Chapter XXIII, as if it were an inquiry."
33. The object of Section 391 Cr.PC is to conduct further inquiry by taking additional evidence. The Appellate Court can exercise this discretion to ensure that justice is done between the parties and discretion can be exercised if the evidence stated to be led is necessary in order to enable the court to give a finding. In these circumstances, the Appellant Court would be justified in allowing the prayer under Section 391 Cr.PC. However, this provision cannot be used to fillup the lacunas or remedy the negligence/lapses of the parties and under the garb of this section, the parties cannot be given a chance to prove their case. If the parties had sufficient time and opportunity to lead evidence, the discretion under this section cannot be exercised.
34. In Sukhjeet Singh (Supra), it was inter alia held by the Hon'ble Supreme Court as under :
"Additional evidence may be necessary for a variety of reasons which it is hardly proper to construe one section with the aid of observations made to do what the legislature has refrained from doing, namely, to control CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 17 discretion of the appellate court to certain stated circumstances. It may, however, be said that additional evidence must be necessary not because it would be impossible to pronounce judgment but because there would be failure of justice without it. The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise."
35. It is also relevant to mention here that in the same case, the Hon'ble Supreme Court had also referred to the case of Rambhau and Another vs. State of Maharashtra (2001) 4 SCC 759 and inter alia held as under :
"15. This Court again in Rambhau and Another Vs. State of Maharashtra, (2001) 4 SCC 759 had noted the power under Section 391 Cr.P.C. of the Appellate Court. Following was stated in Paragraph Nos. 1 and 2:
1. There is available a very wide discretion in the matter of obtaining additional CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 18 evidence in terms of Section 391 of the Code of Criminal Procedure. A plain look at the statutory provisions (Section 391) would reveal the same.
2. A word of caution however, ought to be introduced for guidance, to wit: that this additional evidence cannot and ought not to be received in such a way so as to cause any prejudice to the accused. It is not a disguise for a retrial or to change the nature of the case against the accused.
This Court in the case of Rajeswar Prasad Misra v. State of W.B. in no uncertain terms observed that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. This Court was candid enough to record however, that it is the concept of justice which ought to prevail and in the event, the same dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard."
36. Similarly, in Rajeswar Prasad Misra vs. State of West Bengal and Another AIR 1965 SC 1887, it was inter alia held that the order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it. The Hon'ble Supreme Court recorded that it is the concept of justice which ought to prevail and in the event, the same CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 19 dictates exercise of power as conferred by the Code, there ought not to be any hesitation in that regard.
37. The perusal of the abovesaid judgments make it clear that there are no limitation on the power under Section 391 Cr.PC of the Appellate Court. The power is conferred to secure end of justice, however, at the same time, it has also to be seen that such a discretion can be exercised only if otherwise there would be failure of justice. This power has to be exercised sparingly and in suitable cases.
38. In the present case, initially the accused persons did not take any defence and only at the stage of recording of statement under Section 313 Cr.PC and in the defence evidence, a plea was taken that the payment regarding the commercial transaction relating to vehicle no. DL1VB3315 were duly made by the appellant/accused to the complainant/respondent and the present cheques were issued against the agreement for sell of the vehicle, which was later on terminated. The plea of the complainant is that these cheques were issued against the utilisation of his vehicle by the accused persons for their travel agency.
39. It is pertinent to mention here that the accused persons have not produced any statement on account. Even if the payment made by the accused persons to the complainant CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 20 or drivers Sh. Ranbir Singh and Sh. Gagan Singh, produced by the accused persons as defence witnesses, are taken into account, it would not justify dishonour of the cheques issued by the accused persons. In absence of any statement of account, even if the payments are made by the accused persons are considered, the same would be irrelevant.
40. In the circumstances, the application under Section 391 Cr.PC is liable to be dismissed. The same is accordingly dismissed.
41. With regard to the law on the point of limitation, it is a settled proposition that a liberal, pragmatic, justice oriented, nonpedantic approach should be adopted while dealing with the application for condonation of delay.
42. In Collector, Land Acquisition, Anantnag & Ors Vs. Mst. Katiji & Ors 1987 AIR 1353, it was inter alia held as under :
"The expression "sufficient cause" employed by the legislature is adequately elastic to enable the courts to apply the law in a meaning ful manner which subserves the ends of justicethat being the lifepurpose for the existence of the institution of Courts. It is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 21 all the other Courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that: "Any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908. may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period."
1. Ordinarily a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is con doned the highest that can happen is that a cause would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a nondeliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 22 litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk.
6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so.
43. Further, in Esha Bhattacharjee vs. Managing Committee of Raghunathpur Nafar Academy and Ors. (2013) 12 SCC 649, it was inter alia held as under :
"15. From the aforesaid authorities the principles that can broadly be culled out are:
i) There should be a liberal, pragmatic, justiceoriented, non pedantic approach while dealing with an application for condonation of delay, for the courts are not supposed to legalise injustice but are obliged to remove injustice.
ii) The terms "sufficient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact situation.
iii) Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.
iv) No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 23 counsel or litigant is to be taken note of.
v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
vi) It is to be kept in mind that adherence to strict proof should not affect public justice and cause public mischief because the courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.
vii) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.
viii) There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the first one warrants strict approach whereas the second calls for a liberal delineation.
ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
x) If the explanation offered is concocted or the grounds urged in the application are fanciful, the courts should be vigilant not to expose the other side unnecessarily to face such a litigation.
CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 24
xi) It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.
xii) The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.
xiii) The State or a public body or an entity representing a collective cause should be given some acceptable latitude."
44. Bare perusal of these judgments make it clear that the Apex Court has time and again held that if delay is not condoned in meritorious matter, the cause of justice stands defeated. The courts have to look for the substantial justice instead of technical consideration. However, at the same time, the lack of bona fide is a significant and relevant fact.
45. It is also pertinent to mention here that the rule of limitation is to ensure that the parties do not resort to dilatory tactics. The litigant is expected to seek their remedy promptly. The Law of limitation fixes a lifespan in availing legal remedy. The legislature with this intention has fixed a life span for each remedy and unending period for exercising the remedy will certainly lead to unending uncertainty and CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 25 consequential anarchy.
46. The Negotiable Instrument Act, 1881, has been enacted with an object to restore the faith and the confidence of the public in the commercial transaction. It is a matter of common knowledge that despite having provided a special mechanism, the cheque dishonour cases take a long time. The accused persons take frivolous pleas in order to defeat the object of the Act. In the present case, the complaint took eleven years for reaching to a legal logical conclusion. The appellant has merely stated in the application for condonation of delay that after passing of the impugned order, he went to his native place Himachal Pradesh to take care of his old and ailing father.
47. It is pertinent to mention here that despite having been convicted by a competent court, the appellant being careless, casual and negligent went to Himachal Pradesh and did not even bother either to challenge the order passed against him or to comply with the same. There is no document to show that there was any medical emergency which prevented him coming to Delhi and for availing his legal remedy. It is also strange to note that the appellant waited for such a long time to exercise his legal remedy for filing the appeal. Ld. Counsel submitted that though he was CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 26 engaged, but he also took sufficient time for filing of the appeal for the reasons of financial hardship of the appellant. The plea taken by the appellant in the application of condonation of delay and the submissions made by the Ld. Counsel for the appellant to the same effect are without any basis. The plea taken by the appellant lacks bona fide and smacks mala fide. It also shows total disregard to the order passed by the Ld. Trial Court.
48. I have examined the case of the appellants on the merits also. The discussion made hereinabove amply proved that the accused has taken a contradictory defence. The accused at the stage of notice denied all the allegations and simply stated 'not to plead guilty and have defence to make'. Even in the crossexamination of the complainant, virtually no defence was put up. Accused persons put up their story of having purchased the car and issuance of cheques at the stage of recording of statement under Section 313 Cr.PC. This was reiterated by the accused persons in their statement made on oath under Section 315 Cr.PC. I consider that the defence taken by the accused persons are contradictory in nature and is not at all believable. Even Sh. Randeep Singh, to whom allegedly complainant had sold the vehicle, was examined by the accused themselves, but he also did not speak anything CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 27 regarding the defence put up by the accused persons. The Ld. Trial Court had passed a very reasoned and detailed order. I do not find any reason to interfere the same. Thus, the criminal appeal bearing nos. 191/19, 192/19, 193/19 & 194/19 are dismissed being barred by limitation as well as being devoid of any merit.
49. With respect to the appeal bearing nos. 31/19, 32/19, 33/19 & 34/19 filed by the complainant Narender Dhyani against acquittal of accused no.2 Sanjeev Jaswal, Ld. Counsel for the appellant/complainant submitted that the Ld. Trial Court has acquitted the respondent/accused no.2 illegally despite being the fact that few of the cheques in question were issued from the account of partnership firm and that both the accused persons are liable to be held guilty as there was no evidence that the partnership firm had been dissolved or the respondent was not the active partner. The Ld. Counsel therefore, prayed that the order against the acquittal of accused no.2/ respondent may be set aside.
50. In regard to the appeals bearing Nos. 31/19, 32/19, 33/19 & 34/19 filed by the complainant Narender Dhyani against acquittal of accused no.2 Sanjeev Jaswal by the Ld. Trial Court, the first point of consideration is that CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 28 whether the appeal in the present form is maintainable or not. Ld. Counsel for the appellant/complainant submitted that these appeals are maintainable in view of Section 372 read with Section 378 Cr.PC.
51. I consider that the plea of the Ld. Counsel for the appellant is not sustainable in view of the judgment of the Hon'ble High Court of Delhi in the case titled as Bhajanpura Cooperative Urban Thrift & Credit Society Ltd. vs. Sushil Kumar in Crl. Appeal Nos. 972/2012 & 1163/2012, decided on 03.09.2014, wherein the Hon'ble High Court has held as under:
"12. Prior to the amendments in Cr.PC. before 31.12.2009, a complainant in a complaint case initiated under Section 138 N.I. Act could challenge an acquittal order only in an appeal before the High Court under Section 378(4) Cr.PC. Such appeal would be maintainable only if the appellant/ complainant was granted Special Leave to prefer appeal. In my view, amendments w.e.f. 31.12.2009 introducing Section 2 (wa) and Section 372 Cr.PC. did not bring any change in this regard. The purpose and object of the amendment was to provide relief to the 'victims' of offence who hitherto had practically no role to play in the criminal proceedings and who were to remain as mute spectators even though they were the really affected parties. It was with that object that the amendment to Section 372 CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 29 Cr.PC. was made and the definition of 'victim' was incorporated. It was not to cover a situation where the complainant in a private complaint under Section 138 N.I.Act, already had a remedy by way of appeal for redressal of his grievances. The 'complainant' in 138 proceedings cannot be equated or treated at par with 'victims' for whose benefit the amendments have been brought into existence. This was meant for those 'victims' on whose behalf primarily State used to prosecute the offender(s). In case of acquittal, it was left to the State to challenge the order in appeal and the victim had no say.
The amendments in question gave a voice to the victims to challenge the acquittal by filing an appeal under Section 372 Cr.P.C. It was a right conferred upon the victims to prefer an appeal on limited grounds enumerated in the proviso to Section 372 of the Code. It is a separate and independent statutory right and is not dependent either upon or is subservient to the right of appeal of the State. Both the victim and State can file appeals independently without being dependent on the exercise of the right by the other. Under Section 372 Cr.PC., the victim was given substantive right to file appeal not only against acquittal but also if the conviction was for a lesser offence or there was inadequate compensation. State does not have any right to appeal in case of inadequacy of compensation.
13. In my considered view, the 'complainant' in the CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 30 proceedings under Section 138 N.I. Act cannot be considered 'victim' in the letter and spirit of the definition of Section 2 (wa) of the Code and definition of 'injury' under Section 44 IPC cannot be imported into Section 138 N.I. Act. In every such proceedings at first instance, every complainant considers/claims himself/herself a 'victim'. The complainants in these proceedings cannot be taken at par with those who put criminal law into motion to bring the offenders to book at whose hands, they have sustained 'injury' as defined in Section 44 IPC. The changes in Cr.PC. were for 'victims' who were the worst sufferers in a crime and did not have much role in the Court proceedings. To avoid distortion of the Criminal Judicial System, they were given certain rights.
14. The controversy now is no longer res integra in view of the pronouncement of law by Supreme Court in 'Subhash Chand vs. State (Delhi Administration)', (2013) 2 SCC 17. It was a complaint case under Section 7 of Prevention of Food Adulteration Act, in which Subhash Chand was tried and he was acquitted by the learned Metropolitan Magistrate. The State filed criminal appeal before the Sessions Court under Section 378(1)(a) Cr.PC. Preliminary objection regarding maintainability of the appeal before the Sessions Court was rejected. That order was challenged before this Court (Delhi High Court) and it was held that Sessions Court had no jurisdiction to entertain the appeal. The order of the High Court was CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 31 challenged before the Supreme Court who remanded the case to this Court for fresh decision after taking into consideration the provisions of Sections 378(1) and 378(4) of Cr.PC. and the relevant provisions of the Prevention of Food Adulteration Act. After remand, this Court held that the appeal filed by the State against an order of acquittal would lie to the Sessions Court under Section 378(1) of the Cr.PC. Again, this order was challenged by the accused before the Supreme Court and Supreme Court held :
".....we conclude that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court.
He cannot file such appeal in the Sessions Court. The complainant can challenge the order of acquittal by filing an application for special leave to appeal in the Delhi High Court and not in the Sessions Court...."
15. Of course, the scope of Section 372 Cr.PC. and subsequent amendments in Cr.PC. (Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) did not come for consideration before the Supreme Court in this case. But it cannot be assumed that the Supreme Court was not aware of the existence of the provisions of Section 372. The Supreme Court further observed:
CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 32 "Thus, whether a case is a case instituted on a complaint depends on the legal provisions relating to the offence involved therein. But once it is a case instituted on a complaint and an order of acquittal is passed, whether the offence is bailable or nonbailable, cognizable or noncognizable, the complainant can file an application under Section 378(4) for special leave to appeal against it in the High Court. Section 378(4) places no restriction on the complainant...."
No distinction was made if the complainant was a private person or a public servant."
52. In view of the above discussion and the clear law laid down on this point, the appeal bearing nos. 31/19, 32/19, 33/19 & 34/19 filed by the complainant Narender Dhyani against acquittal of accused no.2 Sanjeev Jaswal, are not maintainable in the present form. In any case, there is not even a single averment in the entire complaint or the material available on the record of the Ld. Trial Court to attribute the liability of respondent. I consider that there is no ground to interfere in the same as the cheques admittedly have been issued by the accused no.3 and there was not even an iota of evidence against accused no.2 on the record. Hence, there is CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19 33 no ground to interfere in the impugned order qua the acquittal of accused no.2 Sanjeev Jaswal. The aforesaid appeals bearing nos. 31/19, 32/19, 33/19 & 34/19 are dismissed as not maintainable.
53. In these circumstances, the application for condonation of delay is dismissed. Resultantly, the appeal bearing nos. 191/19, 192/19, 193/19 & 194/19 are also dismissed.
54. With these observations, the aforesaid appeals are disposed of accordingly.
55. TCR be sent back alongwith copy of the order for taking appropriate steps in terms of order on sentence dated 05.04.2019.
56. File be consigned to Record Room.
DINESH KUMAR Digitally signed by DINESH
KUMAR SHARMA
SHARMA Date: 2020.12.19 17:36:30 +0530
Announced through (Dinesh Kumar Sharma)
electronic mode on Principal District & Sessions Judge
19.12.2020. New Delhi
CA Nos. 191/19, 192/2019, 193/2019, 194/2019, 31/19, 32/19, 33/19 & 34/19