Dipak S/O. Gundappa Tundalwar vs The Akola Janta Commercial Co-Op ...
2017 Latest Caselaw 1664 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

                                   NAGPUR BENCH : NAGPUR



Criminal Writ Petition No. 25 of 2017



Petitioner              :          Dipak son of gundappa Tundalwar, aged

                                   about 54 years, Occ: Business, resident of 

                                   Main Line, Digras, District Yavatmal

                                   versus

Respondents             :          1)    The Akola Janta Commercial Coop. 

Bank Limited, Akola, Branch Digras, through

its Manager, Mahendra Omkar Santre, aged

59 years, Occ: service, resident of Digras,

District Yavatmal

2) The State of Maharashtra, through P.S.O.,

Digras, District Yavatmal

Shri Anand Deshpande, Advocate for petitioner

Shri G. R. Kothari, Advocate for respondent no. 1

Shri M. N. Joshi, Addl. Public Prosecutor for respondent no. 2

Coram : S. B. Shukre, J

Dated : 12th April 2017

Oral Judgment

1. Rule. Heard forthwith by consent of parties.

2. This writ petition challenges the legality and correctness of

the order dated 28.6.2016 whereby the appeal of the petitioner has been

dismissed by the learned Additional Sessions Judge, Darwha in default for

failure to deposit paper book charges.

3. However, the law in this regard is well settled. The Hon'ble

Apex Court as far back as in the year 1992 in the case of Kishansingh v.

State of Uttar Pradesh reported in 1993 (3) SCALE 312 has held that the

position of a criminal is not the same as in a civil appeal governed by the

Civil Procedure Code. It is held that a comparison of the provisions of

Section 384 Criminal Procedure Code with those of Order 41, Rules 11

and 17 of the Civil Procedure Code clearly brings out the difference. The

Hon'ble Apex Court has held that while Order 41 Rule 17 CPC in express

terms provides that an appeal may be dismissed on the ground of absence

of the appellant when the appeal is called out and Rule 19 provides for its

restoration on the appellant offering sufficient cause for his non-

appearance, no similar or corresponding provision is to be found in the

Code of Criminal Procedure. It also held that the Criminal Procedure

requires in express terms the matter to be considered on merit and,

therefore, a criminal cannot be nonsuited for non-prosecution. Similar

view has been taken by the Hon'ble Apex Court in Bani Singh & ors v.

State of UP reported in AIR 1996 SC 2439. While interpreting the

provisions of Section 386 Cr. P. C. it has been held that it is incumbent

upon the appellate court to decide the appeal on merit and the only

requirement of Section 386 is that the appellant or the respondent be

heard if they choose to appear before the Court and record of the case is

perused and considered by the court.

4. Learned counsel for the respondent no.1 has invited my

attention to the judgment of the Hon'ble Apex Court in the case of Uday

Singh & anr v. State of W.B. and connected appeals reported in (2011)

15 SCC 520 wherein criminal appeals were dismissed for failure of the

appellant or his counsel to appear before the Court. I must mention here

that such dismissal in default of the appeals came in exercise of the

powers of the Hon'ble Apex Court under Article 136 of the Constitution of

India whereby special leave to appeal was granted. Dismissal of the

appeals was not in exercise of the powers under Chapter XXIX of the Code

of Criminal Procedure especially in terms of Section 386 read with Section

374 thereof. Therefore, I must say that this judgment would have no

application to the facts of the instant case.

5. If the paper book charges were not deposited in the instant

case by the appellant, the appellate court was obliged to peruse the record

of the case and consider arguments of both the sides provided they were

submitted and decide the appeal on merits of the case. At the most, the

appellate court could have cancelled the bail granted to the appellant, but

not dismissed the appeal in default if paper book charges were not paid.

This has not been done by the learned Additional Sessions Judge in the

instant case. Hence, the impugned order being illegal, cannot be

sustained in the eye of law.

6. In the result, writ petition is allowed. Criminal Appeal No. 19

of 2013 is restored to file of Additional Sessions Judge, Darwha for being

considered on merits in terms of powers of the Court under Section 386 of

the Code of Criminal Procedure.

Rule is made absolute in above terms.

S. B. SHUKRE, J

joshi