Lakhwinder Singh vs M/S Sew And Stitch
2024 Latest Caselaw 6317 P&H

Punjab-Haryana High Court

Lakhwinder Singh vs M/S Sew And Stitch on 20 March, 2024

                                Neutral Citation No:=2024:PHHC:039814




                                                          2024:PHHC:039814
CRR-2561-2023                                                -1-

       IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH

119                                                       CRR-2561-2023
                                        Date of Decision : March 20, 2024

LAKHWINDER SINGH
                                                                .....Petitioner

                                   VERSUS

M/S SEW AND STITCH
                                                              .....Respondent

CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI

Present :   Mr. Varun Katyal, Advocate
            for the petitioner.

            Mr. Vivek Singla, Advocate
            for the respondent.

KULDEEP TIWARI, J. (Oral)

1. Through the instant petition, challenge is thrown to the

judgment dated 28.3.2023, whereby, the learned trial Court concerned has

convicted the petitioner for the offence punishable under Section 138 of

the Negotiable Instruments Act, vide judgment dated 28.3.2023 and

sentenced him to undergo imprisonment for a period of six months and

further directed him to pay the cheque amount i.e. total ₹40 lacs to the

complainant so as to compensate the complainant vide order dated

31.3.2023 and in default of payment of compensation amount, to further

undergo imprisonment for a period of one month.

2. Having aggrieved with the judgment of conviction (supra),

the petitioner preferred statutory appeal before the First Appellate Court

concerned and vide order dated 27.4.2023, the learned Appellate Court

concerned directed the petitioner to deposit 20% of the total

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compensation amount. The petitioner failed to comply with the

directions of the learned Appellate Court concerned, thereupon, it

proceeded to decide the appeal and the same was dismissed vide

judgment dated 21.8.2023. The perusal of the judgment dated 21.8.2023,

makes revelations that the petitioner was absent on the date fixed for final

arguments.

3. Having aggrieved with the orders of the Courts below, the

instant petition has been filed and on the motion hearing, this Court had

directed the petitioner to surrender before the learned trial Court

concerned, in pursuance of the sentence order passed by the learned trial

Court concerned. The petitioner thereupon, surrendered before the

learned trial Court and he was sent to prison for honouring the sentence

as imposed upon him. This Court on 15.12.2023, considering the fact

that the petitioner has undergone about one month out of the total

sentence of six months, as imposed upon him, suspended the remaining

sentence of the petitioner.

4. Learned counsel for the petitioner submits that infact the

petitioner was not in a position to pay 20% of the compensation amount,

as imposed upon him by the Court below and on the date of final hearing

before the Appellate Court, an exemption application was moved through

his counsel. He further submits that the Appellate Court not only declined

to grant exemption, rather refused to hear his counsel on merits. He

further submits that his application filed under Section 311 Cr.P.C. filed

before the learned Appellate Court concerned was also not adjudicated.

He further submits that infact the hearing before the Appellate Court

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concerned is an exparte hearing and none of the grounds which he has

taken in his memorandum of appeal, was considered by the Appellate

Court concerned. He further placed reliance upon the judgment passed

by the Hon'ble Supreme Court in case "K. Muruganandam & ors Vs.

State rep. by the Deputy Superintendent of Police & Anr.', Criminal

Appeal No.809/2021. He further submits that the petitioner is now ready

and willing to deposit 20% of the compensation amount before the

learned Appellate Court concerned in case one more opportunity is

granted to him

5. Per contra, the learned counsel for the respondent-

complainant has vociferously opposed the submissions made by the

learned counsel for the petitioner and submits that the petitioner cannot

take the benefit of his own wrong doings. He further submits that firstly

the petitioner did not deposit the 20% of the compensation amount, as

directed by the learned Appellate Court concerned and thereupon, in

order to pay the liability to pay the compensation amount, he adopted the

evasive method and filed the exemption application on lame excuses and

the learned Appellate Court concerned was right in its approach to decide

the appeal on merits. To substantive his arguments, he has relied upon

the judgment passed by the Hon'ble Supreme Court in the case of "Bani

Singh Vs. State of U.P.", 1996 AIR (Supreme Court) 2439, wherein the

following question was framed and it was answered in subsequent paras

No.14 and 15, which read as under:-

"The question is, where the accused is the appellant and is represented by a pleader, and the latter fails to appear when

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the appeal is called on for hearing, is the Appellate Court empowered to dispose of the appeal after perusing the record on its own or, must it adjourn the appeal to a future date and intimate the accused to be present on the next date of hearing?

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 satisfyiny 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.

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

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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."

6. This Court has considered the submissions made by both the

learned counsel for the parties concerned and also examined the judgment

passed by the Courts below.

7. Infact the case of the present petitioner is clearly covered by

the judgment passed by the Hon'ble Supreme Court in

K.Muruganandam's case (supra), wherein, it was observed as under:-

"8. It is well settled that if the accused does not appear through counsel appointed by him/her, the Court is obliged to proceed with the hearing of the case only after appointing an

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amicus curiae, but cannot dismiss the appeal merely because of non-representation or default of the advocate for the accused (see Kabira vs. State of Uttar Pradesh and Mohd. Sukur Ali vs. State of Assam)."

8. In the instant matter, it is not the case that the learned

Appellate Court concerned has decided the appeal on its own merits

because none of the plea raised in the memorandum of appeal was

considered by the learned Appellate Court, which led this Court to

conclude that infact it is an exparte decision against the present

petitioner. The best procedure which the learned Appellate Court could

have adopted is to decide the appeal after appointing an amicus curiae, so

that the petitioner could not have been remained unrepresented at the

time of final decision. The appeal is a statutory right of a convict, which

cannot be taken away in a cursory manner. The adequate protection

granted under the Statute should be adhered to and that adequate

protection also includes the adequate and effective representation of the

appellant, either by a counsel appointed by him or through amicus curiae

appointed by Court concerned. In failure to appoint amicus curiae, any

subsequent decision made on the appeal would infact tantamount to take

away the right of appeal from the convict. Therefore, this Court deems it

fit and appropriate to set-aside the judgment passed by the First Appellate

Court concerned and remanded the instant lis to the learned Appellate

Court concerned for its decision a fresh, subject to the condition that the

petitioner would cause an appearance before the learned Appellate Court

concerned on 4.4.2024 and deposit 20% of the compensation amount, as

directed by the learned Appellate Court concerned vide its order dated

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27.4.2023.

9. The instant petition is disposed of accordingly.

                                          (KULDEEP TIWARI)
March 20, 2024                                JUDGE
ajay-1
           Whether speaking/reasoned.         :      Yes/No
           Whether Reportable.                :      Yes/No




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