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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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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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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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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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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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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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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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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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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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