CRL.M.C. 5642/2026 1 $~40 * IN THE HIGH COURT OF DELHI AT NEW DELHI # CNR No. DLHC010355382026 + CRL.M.C. 5642/2026 SHESHNATH DUBEY .....Petitioner Through: Mr. Saksham Mittal and Mr. Suyash Shnker, Advocates along with petitioner-in-person versus UMESH CHAND TIWARI .....Respondent Through: Mr. Ikrant Shiarma, Ms. Kritika Kharab, Mr. R.K. Tanwar and Ms. Ruchi, Advocates along with respondent in person CORAM: HON'BLE MR. JUSTICE MANOJ JAIN O R D E R % 05.08.2026 CRL.M.A. 23575/2026 (for exemption) Exemption allowed, subject to all just exceptions. CRL.M.C. 5642/2026 & CRL.M.A. 23576/2026 1. Mr. Umesh Chand Tiwari (respondent herein) had filed a complaint against Mr. Sheshnath Dubey (petitioner herein) for offence under Section 138 of Negotiable Instruments Act, 1881. They are related as accused/petitioner is real brother-in-law of the complainant i.e. brother of his wife. 2. The cheques were worth Rs. 1,35,000/-. 3. The abovesaid complaint was allowed and the accused was held guilty This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 07/08/2026 at 11:30:36 CRL.M.C. 5642/2026 2 and sentenced to simple imprisonment for a period of eight months and to pay fine of Rs. 2 lacs. He was granted time of 45 days to pay the aforesaid fine, else to undergo simple imprisonment for a further period of two months. 4. Such order was challenged by the accused by filing an appeal which was registered as Criminal Appeal No. 40/2025. 5. During pendency of the aforesaid appeal, learned First Appellate Court directed the appellant (petitioner herein) to deposit 50% of the cheque amount. Appellant, however, did not comply with the aforesaid direction and stopped appearing before the learned First Appellate Court and, therefore, the learned First Appellate Court dismissed the appeal for non-prosecution as well as in-default. 6. Aforesaid order of dismissal of appeal is dated 19.03.2026, which is under challenge. 7. The Appellate Court also directed the matter to be placed before the Trial Court for taking appellant into custody so that he serves the sentence, as per law. 8. Fact, however, remains that thereafter, both the sides have entered into settlement and a sum of Rs. 2 lacs has already been paid by the accused to the complainant, who is now interested in compounding the matter. 9. It is in the aforesaid backdrop also that the present petition has been filed by the accused, whereby it seeks setting aside of order passed by learned First Appellate Court and also seeks recalling of the coercive process. Fact that there is a settlement is evident from Memorandum of Understanding (MoU) dated 20.05.2026. 10. Both the parties are present in person and they have been duly identified by respective counsel. Respondent/complainant submits that he This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 07/08/2026 at 11:30:36 CRL.M.C. 5642/2026 3 has already received a sum of Rs. 2 lacs and since petitioner (accused) is his close relative, he does not want any further action against him and would have no objection if the offence in question is compounded. 11. Order of the learned First Appellate Court, as would be evident from bare reading, is completely fallacious and unsustainable in law. 12. Appellate Court is under legal obligation to decide the appeal on merits and it was totally unjustifiable for the Appellate Court to have dismissed the appeal in-default and for non-prosecution. It at all, there was no compliance of the direction qua deposit of the 50% of the compensation amount, Appellate Court could have, at best, refused to suspend the sentence but it could not have dismissed the appeal in-default and for non-prosecution. Need we emphasize, first appeal is an invaluable right, which could not have been frustrated in the manner it has been done in the case in hand. 13. Reference be made to Bani Singh v. State of U.P.: (1996) 4 SCC 720. In said case, the question arose whether a criminal appeal could be dismissed for non-prosecution. The accused therein was held guilty by the learned Trial Court for offences under Section 363 and 368 IPC and, feeling aggrieved by such judgment of Sessions Court, appeals were filed before the Jurisdictional High Court and when the appeals were taken up, since there was no one present to argue the matter on behalf of the appellant, the appeal was dismissed for non-prosecution. The dismissal was without going into the merits of the case and while dismissing such appeals, the Hon‟ble High Court relied upon Ram Naresh Yadav vs. State of Bihar: AIR 1987 SC 1500. Feeling aggrieved, Special Leave Petition (SLP) was filed by the appellants before the Hon’ble Supreme Court and Hon’ble Supreme Court while overruling Ram Naresh Yadav (supra) and affirming Shyam Deo Pandey v. State of Bihar: This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 07/08/2026 at 11:30:36 CRL.M.C. 5642/2026 4 AIR 1971 SC 1606, came to the conclusion that the appeal could not have been dismissed for non-prosecution simplicitor. 14. Thus, very apparently, such order needs to be set aside and is set aside. 15. Fact, however, remains that no real purpose is going to be served if after setting aside the aforesaid order, the parties are relegated to appeal, when the matter has already been settled between them. 16. Respondent/complainant is present in Court and reiterates that there is settlement between him and the accused and, he, therefore, does not want any further action against the accused and would have no objection if the matter is compounded. 17. Undoubtedly, the power to compound the offence is vested with the Appellate Court as well as with the Revisional Court. There is no real embargo in exercising the same in a petition of the present nature, either. 18. Undoubtedly, composition should have taken place at the earliest available opportunity, particularly, when the parties were closely related. Nonetheless, the matter is permitted to be compounded, albeit, subject to cost of Rs. 25,000/-. The cost is being imposed for the reason that the petitioner did not pursue his appeal in the desired manner and also for delayed composition. Reference be also made to Sanjabij Tari vs. Kishore S Borcar & Anr, 2025 SCC OnLine 2069. 19. Let aforesaid cost be deposited with the Registry of this Court within one week from today. 20. Proof of deposit of cost be submitted with the learned Trial Court along with copy of this order. Let coercive action, if any, be recalled as composition results in acquittal in terms of Section 359 (8) of Bharatiya Nagarik Suraksha Sanhita, 2023. This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 07/08/2026 at 11:30:36 CRL.M.C. 5642/2026 5 21. Petition stands disposed of in aforesaid terms. 22. A copy of this order be sent to learned Trial Court as well as to learned First Appellate Court for information and due compliance. MANOJ JAIN, J AUGUST 5, 2026/dr/sa This is a digitally signed order. The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 07/08/2026 at 11:30:36