Laxmi Narayan Upadhyay v. State of U.P. and others)
advocate holding brief of Shri Alok Kumar Yadav, counsel for opposite party no. 2.
2. The counsel for the rival parties have made a joint statement that they do not propose to file any further affidavits, thus, with the consent of the parties, the application is being decided at the fresh stage.
3. This application under Section 528 BNSS has been filed by the applicant to quash the impugned order dated 28.03.2024 passed by the learned Sessions Judge, Agra whereby the Criminal Appeal No.248 of 2023 (Laxmi Narayan Upadhyay Vs. State of U.P. and others).
4. The case of the applicant is that on 14.10.2016, a complaint stood lodged by the opposite party no. 2 under Section 138 of the N.I. Act with an allegation that a cheque bearing no. 956434 dated
10.08.2016 was drawn by the applicant in favour of the opposite party no. 2 for discharging the liability which on presentation in the Bank came to be dishonoured with the remark kindly contact drawer on 20.07.2016 and on the request of the applicant again the said cheque was presented on 01.09.2016 wherein again it was dishonoured with the remark kindly contact drawer and thereafter the opposite party no. 2 approached the Bank and came to know that the payment was being stopped by the applicant herein, a statutory demand notice was issued on 23.09.2016 followed by a complaint on 14.10.2016. The applicant was summoned under Section 138 of the Act and by virtue of the order dated 06.11.2023 passed in Complaint Case No. 5513 of 2016, the applicant was convicted.
5. Assailing the conviction order, the applicant preferred an appeal before the District and Sessions Judge, Agra along with an application for suspension of the sentence and staying of the recovery.
6. On 01.12.2023, an order came to be passed whereby not only the applicant was enlarged on bail on certain conditions but the conviction and the recovery was stayed with the condition that the applicant was to deposit 20% of the amount in question, however, on 28.03.2023, the appeal (which has been wrongly termed as revision) came to be rejected for non-prosecution by the Sessions Judge, Agra.
7. Questioning the said order, the applicant has been filed the present application.
8. Learned counsel for the applicant has submitted that it is a cardinal principle of law that the appeal and the revision cannot be dismissed in default for non-prosecution as, in case, nobody is appearing then the Court, in the facts and circumstances of the case, is to appoint any amicus curiae in that regard. He seeks to rely upon the judgment of Hon'ble Apex Court in K. Muruganandam v. State Rep. By Its Deputy; Criminal Appeal No. 809/2021 as well as in Bani Singh and others v. State of U.P.; 1996 SCC (4) 720. He thus submits that the order dated
28.03.2024 passed in Criminal Appeal No. 248 of 2023 (Laxmi Narayan Upadhyay Vs. State of U.P. and others) be set aside and the matter be remitted back to Court below to pass fresh orders.
9. Learned AGA as well as counsel appearing for the opposite party no. 2 do not dispute the factual position, according to them, the court below probably overlook the crucial aspect of the matter that the present case which was instituted by the applicant was an appeal and not revision and, however, appeal and revision cannot be dismissed in default, they do not dispute the proposition of law and the judgment in the case of K. Muruganandam (supra) as well as Bani Singh (supra). They submit that the order dated
28.03.2024 passed in Criminal Appeal No. 248 of 2023 (Laxmi Narayan Upadhyay Vs. State of U.P. and others) be set aside and to decide the appeal with a clear stipulation that the applicant shall not take any adjournment and participate in the proceedings.
10. Apparently, the post conviction of the applicant on 06.11.2023 by the trial court, the applicant preferred an appeal, Criminal Appeal No. 248 of 2023 in which on 01.12.2023, orders were passed in favour of the applicant for staying of the sentence and for recovery of the amount. However, the same stood dismissed for non-prosecution on 28.03.2024 on the pretext that the proceedings which were lodged by the applicant was a revision and not an appeal. In the opinion of the Court, in view of the law laid down in the case of K. Muruganandam (supra) as well as Bani Singh (supra), the appeal could not dismissed in default for non- prosecution as the Court ought to have appointed an amicus curiae in that regard. Accordingly, the order dated 28.03.2024 passed by the Sessions Judge, Agra in Criminal Appeal No. 248 of 2023 cannot be sustained.
11. Since a statement has been made by Shri Dwivedi on specific instructions from his client that the applicant shall not take adjournment and participate in the proceedings, thus the application is being decided in the following manner: a). The order dated 28.03.2024 passed in Criminal Appeal No. 248 of 2023 (Laxmi Narayan Upadhyay Vs. State of U.P. and others) be set aside. b). The appeal shall be restored to its original number. c). The party shall appear before the court below by 21.07.2025 and take endeavours and not take unnecessary adjournments and to participate in the appeal. In case, adjournment is being granted for any eventuality then the same should be on the genuine reasons and not more than ten days at a stretch and the appeal shall be decided with most expedition.
12. Accordingly, the application stands disposed of. Order Date :- 7.7.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad
advocate holding brief of Shri Alok Kumar Yadav, counsel for opposite party no. 2.
2. The counsel for the rival parties have made a joint statement that they do not propose to file any further affidavits, thus, with the consent of the parties, the application is being decided at the fresh stage.
3. This application under Section 528 BNSS has been filed by the applicant to quash the impugned order dated 28.03.2024 passed by the learned Sessions Judge, Agra whereby the Criminal Appeal No.248 of 2023 (Laxmi Narayan Upadhyay Vs. State of U.P. and others).
4. The case of the applicant is that on 14.10.2016, a complaint stood lodged by the opposite party no. 2 under Section 138 of the N.I. Act with an allegation that a cheque bearing no. 956434 dated
10.08.2016 was drawn by the applicant in favour of the opposite party no. 2 for discharging the liability which on presentation in the Bank came to be dishonoured with the remark kindly contact drawer on 20.07.2016 and on the request of the applicant again the said cheque was presented on 01.09.2016 wherein again it was dishonoured with the remark kindly contact drawer and thereafter the opposite party no. 2 approached the Bank and came to know that the payment was being stopped by the applicant herein, a statutory demand notice was issued on 23.09.2016 followed by a complaint on 14.10.2016. The applicant was summoned under Section 138 of the Act and by virtue of the order dated 06.11.2023 passed in Complaint Case No. 5513 of 2016, the applicant was convicted.
5. Assailing the conviction order, the applicant preferred an appeal before the District and Sessions Judge, Agra along with an application for suspension of the sentence and staying of the recovery.
6. On 01.12.2023, an order came to be passed whereby not only the applicant was enlarged on bail on certain conditions but the conviction and the recovery was stayed with the condition that the applicant was to deposit 20% of the amount in question, however, on 28.03.2023, the appeal (which has been wrongly termed as revision) came to be rejected for non-prosecution by the Sessions Judge, Agra.
7. Questioning the said order, the applicant has been filed the present application.
8. Learned counsel for the applicant has submitted that it is a cardinal principle of law that the appeal and the revision cannot be dismissed in default for non-prosecution as, in case, nobody is appearing then the Court, in the facts and circumstances of the case, is to appoint any amicus curiae in that regard. He seeks to rely upon the judgment of Hon'ble Apex Court in K. Muruganandam v. State Rep. By Its Deputy; Criminal Appeal No. 809/2021 as well as in Bani Singh and others v. State of U.P.; 1996 SCC (4) 720. He thus submits that the order dated
28.03.2024 passed in Criminal Appeal No. 248 of 2023 (Laxmi Narayan Upadhyay Vs. State of U.P. and others) be set aside and the matter be remitted back to Court below to pass fresh orders.
9. Learned AGA as well as counsel appearing for the opposite party no. 2 do not dispute the factual position, according to them, the court below probably overlook the crucial aspect of the matter that the present case which was instituted by the applicant was an appeal and not revision and, however, appeal and revision cannot be dismissed in default, they do not dispute the proposition of law and the judgment in the case of K. Muruganandam (supra) as well as Bani Singh (supra). They submit that the order dated
28.03.2024 passed in Criminal Appeal No. 248 of 2023 (Laxmi Narayan Upadhyay Vs. State of U.P. and others) be set aside and to decide the appeal with a clear stipulation that the applicant shall not take any adjournment and participate in the proceedings.
10. Apparently, the post conviction of the applicant on 06.11.2023 by the trial court, the applicant preferred an appeal, Criminal Appeal No. 248 of 2023 in which on 01.12.2023, orders were passed in favour of the applicant for staying of the sentence and for recovery of the amount. However, the same stood dismissed for non-prosecution on 28.03.2024 on the pretext that the proceedings which were lodged by the applicant was a revision and not an appeal. In the opinion of the Court, in view of the law laid down in the case of K. Muruganandam (supra) as well as Bani Singh (supra), the appeal could not dismissed in default for non- prosecution as the Court ought to have appointed an amicus curiae in that regard. Accordingly, the order dated 28.03.2024 passed by the Sessions Judge, Agra in Criminal Appeal No. 248 of 2023 cannot be sustained.
11. Since a statement has been made by Shri Dwivedi on specific instructions from his client that the applicant shall not take adjournment and participate in the proceedings, thus the application is being decided in the following manner: a). The order dated 28.03.2024 passed in Criminal Appeal No. 248 of 2023 (Laxmi Narayan Upadhyay Vs. State of U.P. and others) be set aside. b). The appeal shall be restored to its original number. c). The party shall appear before the court below by 21.07.2025 and take endeavours and not take unnecessary adjournments and to participate in the appeal. In case, adjournment is being granted for any eventuality then the same should be on the genuine reasons and not more than ten days at a stretch and the appeal shall be decided with most expedition.
12. Accordingly, the application stands disposed of. Order Date :- 7.7.2025 A. Prajapati ASHUTOSH KUMAR PRAJAPATI High Court of Judicature at Allahabad