Madhya Pradesh High Court
Harveer Singh Raghuwanshi vs Shailendra Devalia on 7 December, 2023
Author: Sanjeev S Kalgaonkar
Bench: Sanjeev S Kalgaonkar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE SANJEEV S KALGAONKAR
ON THE 7 th OF DECEMBER, 2023
CRIMINAL REVISION No. 1998 of 2023
BETWEEN:-
HARVEER SINGH RAGHUWANSHI S/O SHRI ARJUN
SINGH, AGED 45 YEARS, OCCUPATION: AGRICULTURE
R/O VILLAGE KAKRA NAISARAI, ASHOKNAGAR
(MADHYA PRADESH)
.....PETITIONER
(SHRI KRISHNA KARTIKEY SHARMA- ADVOCATE)
AND
SHAILENDRA DEVALIA S/O SHRI DWARKA PRASAD,
AGED 32 YEARS, OCCUPATION: SANTING WORK R/O
SITARAM COLONY GUNA (MADHYA PRADESH)
.....RESPONDENT
(SHRI ARUN KATARE- ADVOCATE FOR RESPONDENT)
Th is revision coming on for hearing this day, th e court passed the
following:
ORDER
This revision petition under Section 397 read with Section 401 of CrPC
is filed assailing the order dated 16.03.2023 passed in CRA No.92/2020 by the
Additional Sessions Judge, District Guna whereby the appeal of the revision
petitioner was dismissed in default of his appearance.
The petition inter alia states as under:-
(i) The respondent filed a criminal complaint against the revision
petitioner for offence punishable under Section 138 of Negotiable Instruments
Act. The complaint was registered as SCNIA No.385/2017. After conclusion of
trial, the revision petitioner was convicted for offence punishable under Section
138 of NI Act and sentenced to undergo rigorous imprisonment for six months
and also directed to pay compensation in the sum of Rs.2,20,500/- vide
judgment dated 19.02.2020.
(ii) Feeling aggrieved by the judgment of conviction and sentence, the
revision petitioner filed appeal before learned Additional Sessions Judge, Guna.
The appeal was registered at CRA No.92/2015. Learned Sessions judge
dismissed the appeal for default vide order dated 16.03.2023.
Feeling aggrieved by the impugned order dated 16.03.2023, this revision
petition is filed assailing the order on following grounds:-
(i) The Appellate Court failed to consider that petitioner was ready to
comply with the order of Court. Due to Corona Pandemic, he could not appear
before the Court. During Corona Pandemic, the financial condition of the
petitioner had worsen, therefore, he could not comply with the directions of the
Court.
(ii) Learned First Appellate Court committed an error in dismissing the
appeal for default of the revision petitioner and not on the merits of the case.
On such grounds, it is requested that the impugned order dated
16.03.2023 dismissing the appeal be set aside and appeal be heard on merits.
Learned counsel for the revision petitioner submits that the revision
petitioner, in compliance with the order under Section 389 of CrPC, has
deposited 20 per cent of the compensation amount i.e. Rs.44,100/- before the
Trial Court. Thus, he has complied with the directions. The First Appellate
Court had dismissed the appeal for default. The impugned order was not
passed on merits of the appeal, therefore, matter deserves to be remanded for
consideration on merits by the First Appellate Court.
Per contra, learned counsel for the respondent referring to the impugned
order dated 16.03.2023 submits that learned First Appellate Court had taken
cognizance of continuous default on the part of the revision petitioner. The
revision petitioner had not deposited the amount of compensation. Thereafter,
he failed to appear before the First Appellate Court on multiple occasions. The
hearing of appeal was delayed due to non appearance of the petitioner.
Considering these defaults, learned First Appellate Court committed no error in
dismissing the appeal for default and non-appearance of the appellant/revision
petitioner.
Heard both the parties and perused the record.
Appeal under Section 374 of CrPC was filed against the judgment of
conviction and order of sentence dated 19.02.2020 passed by Mr. M.K. Verma,
Judicial Magistrate First Class, Guna whereby the appellant was convicted for
offence punishable under Section 138 of Negotiable Instruments Act and
sentenced to undergo rigorous imprisonment for six months. He was further
directed to pay compensation of Rs.2,20,500/-. The petitioner committed
default in payment of 20 per cent of the compensation amount as directed by
the Appellate Court under Section 389(1) of CrPC for suspension of sentence.
The revision petitioner remained absent before the Appellate Court and further,
he did not appear before the trial Court for undergoing the sentence for non-
compliance of order of suspension. Considering this conduct, the First
Appellate Court proceeded to dismiss the appeal for default of the petitioner.
It is trite law that an appeal cannot be dismissed for default in payment of
compensation. The First Appellate Court may have ordered cancellation of bail
and suspension of sentence.
(The judgment of Supreme Court in case of Vijay D. Savi Vs. State of
Maharashtra (2007) 5 SCC 741 is relied)
Thus, learned First Appellate Court has committed an error in rejecting
the appeal for default without considering it on merits. The impugned order
suffers from patent illegality and impropriety. Therefore, in exercise of
supervisory jurisdiction under Section 397 read with Section 401 of CrPC, the
impugned order dated 16.03.2023 is set aside. The matter is remanded to the
learned First Appellate Court with the direction to conclude the hearing of
appeal as early as possible, preferably, within three months from the date of
order of remand.
Both the parties are directed to appear before the learned trial Court on
20.12.2023. It is further directed that if the revision petitioner commits further
default in appearance, the suspension of sentence shall forthwith be set aside
and he may be directed to undergo the remaining sentence as imposed by the
learned trial Court.
Accordingly, revision petition is disposed of.
(SANJEEV S KALGAONKAR)
JUDGE
Avi
