Chattisgarh High Court
Basant Kumar Katariya vs Amjad Ali on 23 November, 2021
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 22-09.2021
Pronounced on 23-11-2021
CRMP No. 802 of 2020
• Basant Kumar Katariya S/o Shri Champalal Aged About 59 Years Proprietor
Rishab Builders, R/o Rishab Nagar, Durg, Tahsil And District- Durg,
Chhattisgarh.,
---- Petitioner
Versus
• Amjad Ali S/o Shri Khadar Ali Aged About 39 Years R/o House No. R-13,
Rishab Green City, Pulgaon Naka Durg, Tahsil And District- Durg,
Chhattisgarh.,
---- Respondent
For Petitioner : Shri P.R. Patankar, Advocate
For respondent : Shri Rahul Tamaskar, Advocate.
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. ORDER
1. The petitioner has filed present Cr.M.P assailing the order dated 31-
1-2020 passed by Second Additional Judge to the Court of 1st
Additional Sessions Judge, Durg in Criminal Appeal No. 48 of 2020
whereby learned Second Additional Sessions Judge, Durg has
dismissed the appeal filed by the petitioner for want of prosecution.
2. The brief facts as projected by the petitioner are that the petitioner
has filed a complaint on 13-8-2015 against respondent stating that
the respondent Amjad Ali had issued a cheque drawn by Allahabad
Bank New Khursipar Bhilai bearing cheque No. 63225 dated 27-10-
2010 for Rs.10,00,000/- to the petitioner and when petitioner
deposited said cheque in the bank, same was dishonoured on
account of insufficient funds in the bank on account of the
respondent. Thereafter the petitioner filed a complaint under Section
138 of Negotiable Instruments Act, 1881 against the respondent was
registered as criminal complaint No. 3837 of 2015. Learned Judicial
Magistrate First Class, vide its order dated 21-11-2019 has allowed
the complaint filed by the petitioner and convicted the
accused/respondent as allegation made against the accused for
dishonour of cheque dated 27-10-2010 for Rs.10,00,000/- was found
proved and directed the accused to pay Rs.1,00,000/- as
compensation to the complainant, in default of payment of
compensation, to undergo simple imprisonment for one month and
twenty days.
3. Being aggrieved by the said order to the extent in not granting
adequate compensation, respondent filed an appeal before the
Sessions Judge, Durg, contending that as per Section 138 of the
Negotiable Instruments Act, 1881, if commission of offence of
dishonour of cheque found proved then the accused is liable to pay
the double amount of compensation whereas the learned Judicial
Magistrate has only granted Rs.1,00,000/- as compensation,
therefore, it is clear violation of Section 138 of the Act, 1881. The
appeal was filed before the learned Sessions Judge, Durg on 7-1-
2020 thereafter learned Sessions Judge, Durg directed for
registration of the case and fixed the case for preliminary arguments
on 16-1-2020. On that day the learned Sessions Judge, Durg
transferred the case to Second Additional Judge to the Court of First
Additional Sessions Judge, Durg. . The learned appellate Court fixed
the case for motion hearing on 24-1-2020. On that day the appellant
was absent, therefore, the case was adjourned to 31-1-2020 and on
31-1-2020 since the appellant and his counsel were absent the
appellate Court dismissed the appeal for want of prosecution. This
order is being challenged by the petitioner before this court by filing
present petition under Section 482 of Cr.P.C.
4. Learned counsel for the petitioner would submit that the impugned
order dated 31-1-2020 passed by the court below in Criminal Appeal
No. 48 of 2020 is contrary to law, facts and circumstances of the
case. The learned court below ought to have appreciated that on 16-
1-2020 the case was fixed for preliminary arguments, but as there
was strike of the Advocates, nobody could appear and the next date
was neither known to the petitioner nor to his counsel, therefore,
appeal should not have been dismissed for want of prosecution. He
would further submit that it is settled law that for the mistake
committed by the Advocate the litigant ie., present petitioner should
not suffer.. There was no deliberate negligence on the part of the
petitioner or his counsel for non prosecuting his case properly and as
such the petitioner should not have been punished. He would further
submit the cheque was of Rs.10,00,000/- (Rupees Ten lakhs)
whereas the petitioner was only awarded compensation of
Rs.1,00,000/- (Rupees one lakh) for which he has preferred an
appeal as Section 372 of Cr.PC requires to be heard on merits,
therefore, the impugned order dated 31-10-2020 is per se illegal, and
deserves to be set aside and the appeal requires to be restored to its
original number for further hearing on merit.
5. On the other hand, learned counsel for the respondent supports the
impugned order.
6. The point required to be considered by this court is whether the
learned Appellate Court can dismiss the criminal appeal filed by the
complainant for enhancement of sentence for want of prosecution in
absence of complainant/appellant or his counsel?.
7. Before adverting to the facts of the case, it is expedient for this court
to examine the scheme of Cr.P.C while hearing the criminal appeal.
The relevant Sections 384, 385 and 386 of Cr.P.C. are necessary
which are extracted herein-below for ready reference.
"384. Summary dismissal of appeal.
(1) If upon examining the petition of appeal and copy of
the judgment received under section 382 or section
383, the Appellate Court considers that there is no
sufficient ground for interfering, it may dismiss the
appeal summarily: Provided that-
(a) no appeal presented under section 382 shall be
dismissed unless the appellant or his pleader has had
a reasonable opportunity of being heard in support of
the same;
(b) no appeal presented under section 383 shall be
dismissed except after giving the appellant a
reasonable opportunity of being
heard in support of the same, unless the Appellate
Court con- siders that the appeal is frivolous or that the
production of the accused in custody before the Court
would involve such inconvenience as would be
disproportionate in the circumstances of the case;
(c) no appeal presented under section 383 shall be
dismissed summarily until the period allowed for
preferring such appeal has expired.
(2) Before dismissing an appeal under this section, the
Court may call for the record of the case.
(3) Where the Appellate Court dismissing an appeal
under this section is a Court of Session or of the Chief
Judicial Magistrate, it shall record its reasons for doing
so.
(4) Where an appeal presented under section 383 has
been dismissed summarily under this section and the
Appellate Court finds that another petition of appeal
duly presented under section 382 on behalf of the
same appellant has not been considered by it, that
Court may, notwithstanding anything contained in
section 393, if satisfied that it is necessary in the
interests of justice so to do, hear and dispose of such
appeal in accordance with law.
385. Procedure for hearing appeals not dismissed
summarily.
(1) If the Appellate Court does not dismiss the appeal
summarily, it shall cause notice of the time and place at
which such appeal will be heard to be given-
(i) to the appellant or his pleader;
(ii) to such officer as the State Government may
appoint in this behalf;
(iii) if the appeal is from a judgment of conviction in a
case instituted upon complaint, to the complainant;
(iv) if the appeal is under section 377 or section 378, to
the accused, and shall also furnish such officer,
complainant and accused with a copy of the grounds of
appeal.
(2) The Appellate Court shall then send for the record
of the case, if such record is not already available in
that Court, and hear the parties: Provided that if the
appeal is only as to the extent or the legality of the
sentence, the Court may dispose of the appeal without
sending for the record.
(3) Where the only ground for appeal from a
conviction is the alleged severity of the sentence, the
appellant shall not, except with the leave of the Court,
urge or be heard in support of any other ground.
386. Power of the Appellate Court. After perusing
such record and hearing the appellant or his pleader, if
he appears, and the Public Prosecutor if he appears,
and in case of an appeal under section 377 or section
378, the accused, if he appears, the Appellate Court
may, if it considers that there is no sufficient ground for
interfering, dismiss the appeal, or may-
(a) in an appeal from an order or acquittal, reverse
such order and direct that further inquiry be made, or
that the accused be re- tried or committed for trial, as
the case may be, or find him guilty and pass sentence
on him according to law;
(b) in an appeal from a conviction-
(i) reverse the finding and sentence and acquit or
discharge the accused, or order him to be re- tried by a
Court of competent jurisdiction subordinate to such
Appellate Court or committed for trial, or
(ii) alter the finding, maintaining the sentence, or
(iii) with or without altering the finding, alter the nature
or the extent, or the nature and extent, of the sentence,
but not so as to enhance the Same;
(c) in an appeal for enhancement of sentence-
(i) reverse the finding and sentence and acquit or
discharge the accused or order him to be re- tried by a
Court competent to try the offence, or
(ii) alter the finding maintaining the sentence, or
(iii) with or without altering the finding, alter the nature
or the extent, or the nature and extent, of the sentence,
so as to enhance or reduce the same;
(d) in an appeal from any other order, alter or reverse
such order;
(e) make any amendment or any consequential or
incidental order that may be just or proper; Provided
that the sentence shall not be enhanced unless the
accused has had an opportunity of showing cause
against such enhancement: Provided further that the
Appellate Court shall not inflict greater punishment for
the offence which in its opinion the accused has
committed, than might have been inflicted for that
offence by the Court passing the order or sentence
under appeal".
8. From bare perusal of the order dated 31-1-2020 it is evident that the
learned Appellate Court has not decided the appeal on merit but has
dismissed the appeal at the admission stage without going into the
merits of the case the appeal has been dismissed for want of
prosecution which is glaring mistake on the part of the Appellate court
as even if the complainant or counsel is absent before the court on
the date of hearing, the appellate court should have decided the
appeal on merit as held by Hon'ble Supreme Court in Bani Singh
and others vs. State of Uttar Pradesh, reported in (1996) 4 SCC
720 in paras 14, 15, 16 and 17 which are extracted herein-below for
ready reference.
"14. We have carefully considered the view
expressed in the said two decisions of this Court
and, we may state that the view taken in Shyam
Deo's case appears to be sound except for a minor
clarification which we consider necessary to mention.
The plain language of Section 385 makes it clear that
if the Appellate Court does not consider the appeal fit
for summary dismissal, it 'must' call for the record
and Section 386 mandates that after the record is
received, the Appellate Court may dispose of the
appeal after hearing the accused or his counsel.
Therefore, the plain language of Sections 385-386
does not contemplate dismissal of the appeal for
non-prosecution simplicitor. On the contrary, the
Code envisages disposal of the appeal on merits
after perusal and scrutiny of the record. The law
clearly expects the Appellate Court to dispose of the
appeal on merits, not merely by perusing the
reasoning of the trial court in the judgment, but by
cross-checking the reasoning with the evidence on
record with a view to satisfying itself that the
reasoning and findings recorded by the trial court are
consistent with the material on record. The law,
therefore, does not envisage the dismissal of the
appeal for default or non-prosecution but only
contemplates disposal on merits after perusal of the
record. Therefore, with respect, we find it difficult to
agree with the suggestion in Ram Naresh Yadav's
case that if the appellant or his pleader is not
present, the proper course would be to dismiss an
appeal for non-prosecution.
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 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 of
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 is 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 adjourn the case to
another date if the appellant or his lawyer remained
absent.
16. Such a view can bring about a stalemate
situation. The appellant and his lawyer can remain
absent with impunity, not once but again and again
till the Court issues a warrant for the appellant's
presence. A complaint to the Bar Council against the
lawyer for non-appearance cannot result in the
progress of the appeal. If another lawyer is appointed
at State cost, he too would need the presence of the
appellant for instructions and that would place the
Court in the same situation. Such a procedure can,
therefore, prove cumbersome and can promote
indiscipline. Even if a case is decided on merits in
the absence of the appellant, the highrer court can
remedy the situation is there has been a failure of
justice. This would apply equally if the accused is the
respondent for the obvious reason that if the appeal
cannot be disposed of without hearing the
respondent or his lawyer, the progress of the appeal
would be halted.
17. n view of the position in law explained above, we
are of the view that the High Court erred in
dismissing the appeal for non-prosecution simplicitor
without examining the merits. We, therefore, set
aside the impugned order and remit the appeal to the
High Court for disposal on merits in the light of this
judgment. The appeal will stand allowed accordingly.
9. Hon'ble Supreme Court in K.S. Panduranga vs. State of Karnataka,
reported in (2013) 3 SCC 721, has held in para 32 which is
extracted herein-below for ready reference.
"32. In view of the aforesaid annunciation of law, it
can safely be concluded that the dictum in Mohd.
Sukur Ali (supra) to the effect that the court
cannot decide a criminal appeal in the absence of
counsel for the accused and that too if the
counsel does not appear deliberately or shows
negligence in appearing, being contrary to the
ratio laid down by the larger Bench in Bani Singh
(supra), is per incuriam. We may hasten to clarify
that barring the said aspect, we do not intend to
say anything on the said judgment as far as
engagement of amicus curiae or the decision
rendered regard being had to the obtaining
factual matrix therein or the role of the Bar
Association or the lawyers. Thus, the contention
of the learned counsel for the appellant that the
High Court should not have decided the appeal
on its merits without the presence of the counsel
does not deserve acceptance. That apart, it is
noticeable that after the judgment was dictated in
open court, the counsel appeared and he was
allowed to put forth his submissions and the
same have been dealt with".
10. Very recently, Hon'ble the Supreme Court in Sakunthala vs. State
represented by the Inspector of Police decided on 8-7-2020 in
Criminal Appeal No. 474 of 2020 (arising out of SLP (Cri) No. 3031 of
2020) has held as under:
"Mr. Thomas Franklin Caesar, learned counsel
appears on behalf of the appellant. He has
submitted before us that given judgment in
K.S. Panduranga vs. State of Karnataka
(2013) 3 SCC 721, an appeal against an order
of conviction cannot be dismissed in default
but must be taken up and decided on merits
even if the appellant in person or the counsel
representing him, is not present".
11. Considering all the facts and circumstances of the case, material
available on record and in view of the legal position, it is clear that the
appellate Court has committed illegality and irregularity in dismissing
the criminal appeal without examining the record of the case,
therefore, the order dated 31-1-2020 passed in Criminal Appeal No.
48 of 2020 is liable to be and is hereby set aside, Criminal Appeal
No. 48 of 2020 be restored to its original number and thereafter, the
appellate Court shall decide the appeal on its own merits.
12. Accordingly, the matter is remanded back to the court of 1st
Additional Sessions Judge, Durg for adjudicating the matter afresh. It
is directed that the appellate Court after giving proper opportunity of
hearing to both parties and after considering the material on record,
record of the trial court, shall decide the appeal on its merits. It is
made clear that this Court has not expressed any opinion on the
merits of the case. The appellate Court shall list the appeal on
admission. The petitioner is directed to appear before the appellate
Court on 21-12-2021. The record of this case be sent immediately to
the appellate Court.
13. In view of aforesaid observation and direction, present CRMP is
allowed.
Sd/- -
(Narendra Kumar Vyas)
Judge
Raju
