Karnataka High Court
Shri. Shreekumar Anil Shetty vs Shri. Prashant S/O Chandrakant Pawar on 1 April, 2024
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CRL.RP No. 100107 of 2024
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 1ST DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE ANIL B KATTI
CRIMINAL REVISION PETITION NO. 100107 OF 2024 (397)
BETWEEN:
SHRI. SHREEKUMAR ANIL SHETTY,
AGE: 40 YRS, OCC: BUSINESS,
C/O REDEKAR, OPP. THE BELAGUM TALUKA RURAL,
CO-OP SOCIETY, FULBAG GALLI,
BELAGAVI 590001.
...PETITIONER
(BY SMT. CHETANA S. BIRAJ, ADVOCATE)
AND:
SHRI. PRASHANT S/O CHANDRAKANT PAWAR,
AGE: 47 YEARS, OCC: BUSINESS
R/O MARATHA COLONY, TILAKWADI,
BELAGAVI-590006.
...RESPONDENT
Digitally signed
by SAROJA (BY SRI VITTAL S. TELI & YASH R NADKARNI, ADVOCATES)
HANGARAKI
Location: HIGH
COURT OF THIS CRIMINAL REVISION PETITION IS FILED U/SEC. 397 R/W
KARNATAKA
DHARWAD 401 OF CR.P.C. SEEKING TO SET ASIDE THE ORDER IN CRL.A
BENCH
DHARWAD NO. 98/2021 PASSED BY VI ADDL. DISTRICT AND SESSIONS JUDGE,
BELAGAVI DATED 28.04.2023 FOR OFFENCE PUNISHABLE U/SEC.
138 OF NI ACT AND RESTORE THE CASE FOR CONSIDERATION IN
ACCORDANCE WITH LAW.
THIS PETITION, COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRL.RP No. 100107 of 2024
ORDER
The matter is listed today for hearing on I.A.No.1/2024
for suspension of sentence. However, with the consent of both
sides, the matter is taken up for final disposal, since very short
question regarding dismissal of appeal for non-prosecution is
involved in this case.
2. Heard the arguments of both sides.
3. After hearing the arguments of both sides and on
perusal of records produced by revision petitioner, the following
points arise for consideration:
(1) Whether the impugned order under
revision petition passed by the First
Appellate Court dated 28.04.2023 in
dismissing the appeal for non-
prosecution is perverse, capricious
and legally not sustainable?
(2) Whether interference of this Court is
required?
4. The records produced by revision
petitioner/accused would go to show that accused was tried
before the Trial Court on the file of J.M.F.C-VI, Belagavi in
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C.C.No.1527/2017 for the offences punishable under Section
138 of Negotiable Instruments Act, 1881 (hereinafter referred
to as 'N.I. Act' for brevity).
5. The Trial Court after hearing the arguments of
both sides and on appreciation of oral and documentary
evidence placed before it has convicted the accused for the
offence punishable under Section 138 of N.I. Act and imposed
sentence as per the order of sentence.
6. The said judgment of conviction and order of
sentence has been assailed by the accused before the First
Appellate Court on the file of the VI Addl. District and Sessions
Judge, Belagavi in Crl.A.No.98/2021. The First Appellate Court
by order dated 28.04.2023 has dismissed the appeal for non-
prosecution. The correctness and legality of the said order
passed by the First Appellate Court has been called in question
in the present revision petition by the accused in view of the
grounds urged in revision petition.
7. On careful perusal of the order-sheet maintained
by the First Appellate Court, it would go to show that the First
Appellate Court by order dated 05.04.2021 has suspended the
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sentence imposed against the accused subject to deposit of
20% of fine amount as ordered by the Trial Court, further
ordered to issue notice to respondent. In response to the
notice, respondent/complainant has appeared through his
counsel and the Trial Court records have been secured. It
means that the First Appellate Court did not exercise power
under Section 384 of Cr.P.C. to summarily dismiss the appeal.
The First Appellate Court has decided to dispose off the appeal
on merits. When the First Appellate Court did not exercise its
power under Section 384 of Cr.P.C. to summarily dispose off
the appeal, then procedure contemplated under Section 385
has to be followed. Thereafter, the First Appellate Court has got
power to dispose off the appeal in terms of procedure
contemplated under Section 386 of Cr.P.C. Where there is an
appeal against judgment of conviction, the appeal cannot be
dismissed for non-prosecution. If the accused fails to appear
before the First Appellate Court to prosecute the appeal, then
coercive steps will have to be taken by the Appellate Court to
secure the presence of accused before the First Appellate Court
either to argue the matter in person or to make necessary
arrangements to represent him by any counsel. Otherwise also,
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if the First Appellate Court finds that in order to expedite the
hearing of appeal itself is necessary, then it is open for the First
Appellate Court to exercise it's power to appoint any penal
advocate to represent him through the District Legal Services
Authority or to appoint an amicus curiae to represent the
accused to prosecute the appeal. However, the First Appellate
Court did not take any of these steps and proceeded to pass
the impugned order under the appeal and dismissed the appeal
for non-prosecution.
8. The order-sheet of the First Appellate Court will
further goes to show that on 12.08.2022 it has recorded the
absence of counsel for petitioner. Counsel for respondent was
present. The parties' absence was also recorded. The matter
was ordered to be kept by. When the matter was called again
at 12.20 p.m., it has recorded that both the parties are absent.
The counsel for respondent is present. Counsel for appellant is
absent and there is no representation. The counsel for
respondent submitted that even the appellant proposed for
settlement, he did turn up and has not come forward to
address arguments on merits. Hence, he is ready to argument.
Perused the records, the submission prima facie found correct.
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Hence, reserving the right of the appellant to address reply.
Heard the counsel for respondent on merits. It is there after till
28.04.2023 for more than one year, the matter was adjourned
on one or the other reasons. However, on 28.04.2023, the Trial
Court has dismissed the appeal for non-prosecution. The said
procedure adopted by the First Appellate Court in hearing the
arguments of respondent against the judgment of conviction
without hearing the appellant itself is unknown to law. It is
always incumbent upon the First Appellate Court to hear the
counsel for appellant first then proceed to hear the counsel for
respondent. If or any reasons the counsel for appellant did not
show any inclination to address the arguments then it is the
duty of the First Appellate Court either to appoint an amicus
curiae or to provide the legal assistance of the penal advocates
of the District Legal Services Authority. The First Appellate
Court without adopting the requisite procedure for disposal of
appeal on merits has used shortcut method to dismiss the
appeal for non-prosecution which is an appeal against
judgment of conviction. The appeal against judgment of
conviction is statutory right of the accused which cannot be
curtailed in the manner which the First Appellate Court has
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proceeded to dispose off the appeal without deciding the same
on merits.
9. In this context of the matter, it is profitable to
refer the judgment of Hon'ble Apex Court in Bani Singh and
others vs. State of U.P. reported in AIR 1996 SC 2439
wherein it has been observed and held as under:
"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. The plain language of Sections
385-386 does not contemplate dismissal of the
appeal for non prosecution simpliciter. On the
contrary, the Code envisages disposal of the appeal
on merits after perusal and scrutiny of record. The
law clearly expects the Appellate Court to dispose
of the appeal on merits, not merely by perusing the
reasoning of the trial in the judgment, but by cross-
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checking the reasoning with the evidence on record
with a view to satisfy itself that the reasoning and
findings recorded by the trial court are consistent
with the material on record."
The Hon'ble Rajasthan High Court in Mahendra Singh
Vs. State of Rajasthan reported in 1997 CRI.L.J. 1751 by
referring to the aforementioned judgment of Hon'ble Apex
Court in Bani Singh case has held that Sections 385, 386 does
not contemplate dismissal of appeal for non-prosecution.
Hence, said order of dismissal of appeal being non est, was set
aside and the Appellate Authority was directed to decide the
appeal on merits. In view of the principles enunciated in the
aforementioned two judgments, it is evident that appeal cannot
be dismissed for non prosecution.
10. It is true that the accused who was represented
through counsel should have been more diligent in prosecuting
the appeal and remain present before the Court when the
matter is listed for arguments. However, for the reasons best
known to the accused, neither he has chosen to appear before
the Court nor arranged his counsel to represent him in the
Court. The inaction on the part of the accused in prosecuting
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the appeal is not acceptable, but the appeal against judgment
of conviction at any rate cannot be dismissed for non-
prosecution. Now the accused and complainant are both
represented through their counsels. In order to expedite the
hearing of appeal on merits, it would be just and proper to
impose conditions for appearance before the First Appellate
Court to prosecute the appeal. Therefore, the same needs
interference of this Court. Consequently, pass the following:
ORDER
Revision Petition filed by revision petitioner/accused is
hereby allowed.
The order of First Appellate Court dated 28.04.2023 in
dismissing the appeal for non-prosecution is hereby set aside.
Accused and the complainant who are represented
through their counsels before this Court are directed to appear
before the First Appellate Court on 18.04.2024 to receive
further instructions from the Fist Appellate Court without there
being any notice.
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The First Appellate court is directed to dispose off the
appeal as expeditiously as possible.
Pending I.A.'s if any are disposed off accordingly.
Sd/-
JUDGE
RKM
CT:GSM
