Chattisgarh High Court
Bhuneshwar Lal vs Ghanshyam Banjre on 28 July, 2022
1
CRR No. 527 of 2022
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
CRR No. 527 of 2022
Bhuneshwar Lal S/o Dukalha Ram Sahu Aged About 45
Years R/o Bohardih, Police Station Gidhpuri, Tahsil Palari,
District : Balodabazar-Bhatapara, Chhattisgarh
---- Applicant
Versus
Ghanshyam Banjre S/o Chandram Banjare Aged About 35
Years R/o Junwani, Police Station Gidhpuri, Tahsil Palari,
District : Balodabazar-Bhatapara, Chhattisgarh
---- Respondent
For Applicant :- Mr. Ravindra Sharma, Adv. on
behalf of Mr. Anil Gulati, Adv.
For Respondent :- Mr. Yogesh Kumar Chandra, Adv.
Hon'ble Shri Justice N.K. Chandravanshi
Order On Board
28/7/2022
1. With the consent of learned counsel appearing for the
parties, the instant revision is heard finally.
2. This revision has been preferred against order dated
18.2.2022 passed by 3rd Upper Sessions Judge,
Balodabazar, C.G. in Criminal Appeal No.54/2021, whereby
learned 3rd Upper Sessions Judge has dismissed the appeal
preferred by the applicant for want of prosecution.
CRR No. 527 of 2022
3. Briefly, stated facts of the case are that vide judgment dated
30.11.2021, passed by Judicial Magistrate First Class,
Balodabazar, District Balodabazar-Bhatapara, (C.G.) in
Negotiable Case No. 44/2019, convicted the applicant for
offence punishable under Section 138 of the Negotiable
Instrument Act and sentenced him to undergo one year
rigorous imprisonment and to pay compensation to the tune
of Rs.5 Lacs to complainant/respondent. Being aggrieved
by aforesaid judgment, applicant preferred an appeal before
the 3rd Upper Sessions Judge, Balodabazar. Vide order
dated 02.12.2021, the learned Upper Sessions Judge
allowed the application for suspension of sentence and grant
of bail to the applicant and the appeal was admitted for
hearing. While granting suspension the applicant/appellant
was directed to deposit 20% of compensation amount with a
condition that if he will not deposit 20% of compensation
amount within 15 days, the effect of order of suspension will
be terminated automatically. Thereafter, case was fixed for
appearance of respondent on 28.12.2021, 04.1.2022,
21.1.2022 and 18.2.2022. On 18.2.2022, applicant who was
appellant before the Upper Sessions Judge and his counsel
did not mark their appearance when the matter was called,
as a result, learned Upper Sessions Judge dismissed his
appeal for want of prosecution. Hence this revision.
4. Learned counsel appearing for the applicant would submit
CRR No. 527 of 2022
that appeal pending before learned 3rd Upper Sessions
Judge, Balodabazar was admitted appeal and it is law laid
down by the Hon'ble Apex Court that admitted appeal has to
be heard on merit and it could not be dismissed for want of
prosecution. If appellant/applicant was not present, on the
date of hearing, the learned Appellate Court ought to have
considered the appeal on merit after examining the record of
the case, but learned Upper Sessions Judge has not done
so and simply dismissed the appeal for want of prosecution,
therefore, the impugned order dated 18.2.2022 passed by
the 3rd Upper Sessions Judge is illegal and deserves to be
set-aside.
5. Learned counsel appearing for the respondent supports the
aforesaid legal position, however, he further submits that
despite order passed by learned Appellate Court, applicant
has not deposited 20% of compensation amount, therefore,
if this revision is allowed it be directed to the applicant to
deposit 20% of compensation award, thereafter, his case be
restored.
6. In [(1996) 3 Crimes 54 (SC)] (Bani Singh v. State of
U.P.), it has been held by the Supreme Court that once the
Appellate Court has admitted an appeal for hearing on
merits, it cannot dismiss the appeal for non-appearance of
the Appellant and his Counsel and the appeal must be
disposed of on merits after examining the record of the case
CRR No. 527 of 2022
and after giving an opportunity of hearing to the Appellant or
his Counsel if he is present and to the public prosecutor.
7. In view of the law laid down by the Supreme Court in Bani
Singh case (supra), I am of the considered opinion that in
the case in hand, the Appellate Court erred in dismissing the
criminal appeal preferred by the Applicant for want of
prosecution, simplicitor without going through the merits of
the case.
8. Resultantly, impugned order dated 18.2.2022 passed by the
Upper Sessions Judge in Criminal Appeal No.54 of 2021 is
set-aside subject to condition that applicant shall deposit
20% of the compensation amount before the concerned trial
Court, thereafter, the case shall be restored. The matter is
remanded to the Upper Sessions Judge for fresh
adjudication of the appeal on merits. The Appellate Court is
directed to decide the appeal on merits after giving an
opportunity of hearing to the Appellant/Applicant herein. The
Appellate Court shall decide the appeal as early as possible
preferably within a period of 3 months from the date of
receipt of this order.
9. The instant revision is allowed in the aforesaid terms.
SD/-
(N.K. Chandravanshi)
Judge
Ayushi
