Bombay High Court
Adesh Prakashchand Jain (Borudiya) vs Harish Punamchand Une And Anr on 8 January, 2020
Equivalent citations: AIRONLINE 2020 BOM 1239
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
941-revn-231-19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
941 CRIMINAL REVISION APPLICATION NO.231 OF 2019
WITH APPLN/2686/2019 IN REVN/231/2019
ADESH PRAKASHCHAND JAIN (BORUDIYA)
VERSUS
HARISH PUNAMCHAND UNE AND ANR
...
Advocate for Applicants : Mr. Bora Satyajit S.
APP for Respondents-State: Mr. B.V. Virdhe
Advocate for Respondent No.1 : Mr.S. J. Salunke
...
CORAM : SMT. VIBHA KANKANWADI, J.
DATE : 8th January, 2020.
ORDER :
. Present criminal revision application has been filed by the original accused challenging order dated 15-07-2019 passed below Exhibit-01 in Criminal Appeal No.78 of 2018 by the learned Additional Sessions Judge-2, Jalna for dismissal of his appeal in default.
2. The facts giving rise to the revision are that the present applicant-original accused faced trial in S.C.C. No.1501 of 2016 before the learned Judicial Magistrate First Class, Jalna for the offence punishable under Section 138 of the Negotiable
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941-revn-231-19.odt Instruments Act, 1881. He was held guilty of committing the said offence and has been sentenced to suffer simple imprisonment for one month and to pay fine of Rs.6,58,000/- and in default to suffer simple imprisonment for one month by order dated 17-07-2018. The said judgment and conviction was challenged by the present applicant in Criminal Appeal No.78 of 2018 which was then pending before the learned Additional Sessions Judge-2, Jalna. By order dated 04-02-2019, the sentence was suspended subject to deposit of sum of Rs.1,31,600/- which was 20% of the fine amount awarded by the learned Judicial Magistrate First Class, Jalna. It appears that thereafter within the time limit, that was prescribed for payment of fine amount and furnishing bail as directed by the trial Court as well as the fact that the appellant was absent since long, the learned Additional Sessions Judge-2, Jalna dismissed the appeal in default for want of prosecution on 15-07-2019 and the said order is challenged in this criminal revision application.
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941-revn-231-19.odt
3. Heard learned Advocate Mr. S. S. Bora for the applicant and learned Advocate Mr. S. J. Salunke for respondent No.1. It has been submitted on behalf of the applicant that the learned Additional Sessions Judge erred in dismissing the appeal in default when once he had admitted the appeal. By placing reliance on the decision in Bani Singh and ors. Vs State of U.P. [AIR 1996 SC 2439], it was submitted that the learned Appellate Court ought to have proceeded to decide the appeal, as he could not have disposed of the appeal in default.
4. Per contra, learned Advocate appearing for the original complainant submitted that the conduct of the applicant is required to be considered. A conditional order was passed while suspending the sentence. Accused was directed to deposit 20% of the fine amount within a period of 15 days and he was also directed to furnish bail with surety. He has not done both the acts. He had not taken any steps so that the appeal could proceed further and therefore, the learned
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941-revn-231-19.odt Additional Sessions Judge had rightly dismissed the appeal in default.
5. It is required to be noted that by order dated 09-08-2019 passed by this Court, the present applicant was directed to deposit amount of Rs.1,31,600/- before the Court of Judicial Magistrate First Class within a period of two weeks. The communication has been received that the applicant has deposited that amount.
6. Now, turning to the small point involved in the matter as to whether the Appellate Court could have dismissed the appeal in default once the appeal is admitted. The point is not res integra and it has been held in catena of judgments which have been again summarized in the aforesaid decision of Bani Singh (Supra). After taking note of the decisions in Ram Naresh Yadav and ors. Vs. State of Bihar [AIR 1987 SC 1500] and Shyam Deo Pandey and ors. Vs. State of Bihar [1971 Cri.LJ 1177], it was noticed that there were conflicting views in the same. The matter in Bani
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941-revn-231-19.odt Singh's case (Supra) was placed before the larger Bench. The larger Bench has then laid down the law, which reads as under :-
"15. Secondly, the law expects the Appellate Court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if he is present before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provides that the Appellate Court shall, after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that Section 385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the appellant. So also Section 386 provides for a hearing to be given to the appellant or his lawyer, if he is present and both need not be heard. It is the duty of the appellant and his lawyer to remain
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941-revn-231-19.odt present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter or prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. We would, however hasten to add that if the accused is in jail and cannot, on his own, come to court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused/appellant if his lawyer is not present. If the lawyer is absent, and the court deems it appropriate to appoint a lawyer at State expense to assist it, there if nothing in the law to preclude it from doing so. We are, therefore, of the opinion and we say so with respect, that the Division Bench which decided Ram Naresh Yadav's case did not apply the provisions of Sections 385-386 of the Code correctly when it indicated that the Appellate Court was under an obligation to
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941-revn-231-19.odt adjourn the case to another date if the appellant or his lawyer remained absent."
7. Further note of the decision in Vijay D. Salvi Vs. State of Maharashtra [(2007) 5 SCC 741] can also be taken wherein it has been held that the criminal appeal cannot be dismissed for non payment of fine, it will have to be disposed of on merits. Therefore, definitely, the order that was passed by the learned Additional Sessions Judge-2, Jalna on 15-07-2019 that since the appellant had not deposited the fine amount and had also not furnished the bail, the appeal is dismissed in default, was not a legal order. It deserves to be set aside and the appeal deserves to be restored for its decision as per the law. However, at the same time, observation will have to be made that the appellant cannot take the system for a right. The conduct is definitely required to be deprecated. When the suspension of sentence against him was conditional, then he was bound to obey those conditions. He could have asked time to deposit the
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941-revn-231-19.odt fine amount, but his conduct in not even furnishing bail bonds will have to be deprecated. Therefore, certainly cost is required to be levied on him. Hence, the following order :-
ORDER I) Both the Applications are hereby allowed.
II) Order dated 15-07-2019 passed by the learned Additional Sessions Judge-2, Jalna in Criminal Appeal No.78 of 2018 is hereby set aside in respect of dismissing the appeal in default and directing the trial Court to take necessary steps for imposing the sentence passed against the accused.
III) The said appeal is restored on the file of the concerned Court.
IV) In view of the fact that the amount of 20% of fine has already been deposited as per the orders of this Court by the applicant before the learned Judicial Magistrate First Class, one of
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941-revn-231-19.odt the condition for suspension of sentence is fulfilled.
V) Applicant to furnish bail bonds as
directed by the learned Additional Sessions
Judge-2, Jalna by order dated 04-02-2019, on or
before 22-01-2019.
VI) Learned Appellate Court to proceed with
the appeal as per the provisions of law. VII) Both the parties to appear before the learned Appellate Court on 22-01-2020. VIII) On that day itself, the appellant to deposit cost of Rs.25,000/-. After its deposit, the said amount be given to the complainant.
[SMT. VIBHA KANKANWADI, J.] SCM
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