Smt. Mohua Bhatacharjee vs Sri Goutam Bhowmik & Anr
2021 Latest Caselaw 48 Cal

Form No. J(2)

                IN THE HIGH COURT AT CALCUTTA
                     Criminal Appellate Jurisdiction
                             Appellate Side

Present:
The Hon'ble Justice Jay Sengupta

                            CRR 3422 of 2019
                                 with
                            CRAN 2 of 2020

                       Smt. Mohua Bhatacharjee
                                 Vs.
                      Sri Goutam Bhowmik & Anr.


For the Petitioner             : Mr. Prabir Majumder

For the opposite party 1       : Mr. Sandeep Prasad Shaw
                                 Mr. Anupam Some


Heard on:                      : 06th January 2021

Judgment on :                  : 06th January 2021



The Court:



      This is a revisional application challenging the order dated

04.09.2019

passed by the learned Sessions Judge, Dakshin Dinajpur

at Balurghat in connection with Criminal Appeal No. 04 of 2019,

thereby affirming the judgement and order dated 29.05.2019 passed

by the learned Judicial Magistrate, 2nd Court, Balurghat, Dakshin

Dinajpur in C.R. Case No. 285 of 2017 convicting the appellant under

Section 138 of the Negotiable Instruments Act, and sentencing him to

suffer simple imprisonment for one month and to pay fine of Rs.1.40

lakhs, in default to suffer further simple imprisonment for six months.

Affidavit of service filed on behalf of the petitioner is taken on

record.

Learned counsel appearing on behalf of the petitioner submits

as follows. The petitioner was a school teacher. She had borrowed

some money for the purpose of her son's treatment that could not

repay the same in time. The cheque purportedly issued by her was

dishonoured. At the conclusion of trial, the learned Magistrate

convicted and sentenced her to suffer simple imprisonment for one

month along with fine with a default clause. Due to

miscommunication with the learned advocate, the appeal preferred by

her could not be moved and it was dismissed ex parte on 04.09.2019.

There is much merit in the appeal preferred before the learned

appellate Court. In the event, an appeal has to be decided on merits

and cannot be dismissed ex parte for default. Pursuant to a direction

passed by this Court, the petitioner had deposited a sum of

Rs.50,000/- , without prejudice, before the learned appellate Court.

Learned counsel appearing on behalf of the complainant /

opposite party submits as follows. Although, the petitioner appeared

twice before the learned appellate Court, she did not further prosecute

her appeal and the complainant / opposite party cannot be faulted for

this. However, in the event the learned appellate Court is directed to

decide the matter on merits, the same may be done in a time bound

fashion.

I have heard the submissions of the learned advocates for the

parties and have perused the revision petition.

It is a settled law that an appeal has to be decided on merits

and not dismissed for default.

It is apparent from the impugned order that merits of appeal

were not gone into by the learned appellate Court.

In view of above and in the interest of justice, I set aside the

impugned order passed by the learned appellate Court and remand

back the matter to the learned Appellate Court for deciding the appeal

afresh, on merits after hearing the parties. The learned appellate

Court is requested to decide the appeal as expeditiously as possible

without granting any unnecessary adjournment to any of the parties,

preferably within six months from the date of communication of this

order.

With these observations, the revisional application is disposed

of.

Urgent photostat certified copy of this order may be supplied to

the parties expeditiously, if applied for.

(Jay Sengupta,J.)

SB