Uttarakhand High Court
Smt. Shalini Sahgal vs State Of Uttarakhand And Another on 21 March, 2023
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Revision No. 101 of 2023
Smt. Shalini Sahgal ....Revisionist
Vs.
State of Uttarakhand and Another ..... Respondents
Mr. Sudhir Kumar, Advocate holding brief of Mr. P.C. Petshali for the
revisionist.
Ms. Manisha Rana Singh, A.G.A. assisted by Ms. Shivali Joshi, Brief
Holder for the State of Uttarakhand.
JUDGMENT
Hon'ble Ravindra Maithani, J. (Oral)
The challenge in this revision is made to
order dated 15.11.2022, passed in Criminal Appeal
No.15 of 2022, Shalini Sahgal Vs. State and Another, by
the court of Sessions Judge, Almora ("the appeal"). By
the impugned order, the appeal has been dismissed on
default.
2. Heard learned counsel for the revisionist
and perused the record.
3. It is reported that the service is sufficient
on the respondent no.2. None appears for the
respondent no.2 ("the complainant").
4. Facts necessary to appreciate the
controversy, briefly stated, are as follows: the
complainant filed a complaint under Section 138 of the
Negotiable Instruments Act, 1881 ("the Act"), which is
the basis of Criminal Case No.669 of 2020, Anup Bharti
Vs. Shalini Sahgal, passed by the court of Chief Judicial
Magistrate, Almora ("the case"). The case was decided on
08.07.2022 and the revisionist was convicted and
sentenced under Section 138 of the Act. The judgment
and order dated 08.07.2022, passed in the case, was
challenged by the revisionist in the appeal. The appeal
was fixed for hearing on 15.11.2022 and on that date,
the complainant was present, but the revisionist
remained absent. The court dismissed the appeal in
non-prosecution.
5. Learned counsel for the revisionist would
raise a short question that an appeal, which has been
admitted, cannot be dismissed in non-prosecution. The
order admitting the appeal on 08.08.2022, has also been
filed as Annexure-3 by the revisionist.
6. The law on the question of dismissal of an
appeal is well settle. In the case of K.S.Panduranga Vs.
State of Karnataka, (2013) 3 SCC 721, the Hon'ble
Supreme Court has categorically held that an appeal
cannot be dismissed for non-prosecution, simpliciter
without examining the merits. In Para 19 of the
judgment in the case of K.S. Panduranga (supra), the
Hon'ble Supreme Court has curled up the principles as
follows:
"19. From the aforesaid decision in Bani Singh,
(1996) 4 SCC 720 : 1996 SCC (Cri) 848 : AIR 1996
SC 2439, the principles that can be culled out are:
19.1. That the High Court cannot dismiss
an appeal for non-prosecution simpliciter
without examining the merits;
19.2. That the Court is not bound to
adjourn the matter if both the appellant
or his counsel/lawyer are absent;
19.3. That the court may, as a matter of
prudence or indulgence, adjourn the
matter but it is not bound to do so;
19.4. That it can dispose of the appeal
after perusing the record and judgment of
the trial court;
19.5. 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 appellant-accused if
his lawyer is not present, and if the
lawyer is absent and the court deems it
appropriate to appoint a lawyer at the
State expense to assist it, nothing in law
would preclude the court from doing so;
and
19.6. That if the case is decided on merits
in the absence of the appellant, the
higher court can remedy the situation."
7. Undoubtedly, the impugned order is not in
accordance with law. During the course of argument,
learned counsel for the revisionist admits that the
revisionist was directed to pay the 20 per cent of the
amount of compensation before grant of bail, but it
could not be deposited. He would submit that as per the
provisions of the Act, within 60 days, the amount may
be deposited, but it is submitted that the court in appeal
had given only 15 days' time. Fact remains that the
revisionist never moved any application for extension of
time for the deposition of the money. Fact also remains
that till the date, when the appeal was dismissed, the
revisionist did not deposit the money. What would be its
consequence, it would fall for consideration for the court
in appeal, once the appeal is restored.
8. With the above observation, this Court is of
the view that the revision deserves to be allowed.
8. The revision is allowed, accordingly.
9. The order dated 15.11.2022, passed in the
appeal is set aside. Let the appeal be restored to its
number. The court in appeal shall decide the appeal on
merits.
10. Let a copy of this judgment be forwarded to
the court concerned.
(Ravindra Maithani, J.)
21.03.2023
Ravi Bisht
