At, In the High Court of Bombay at Nagpur
By, THE HONOURABLE MR. JUSTICE P.D. KODE
For the Applicants: N.B. Jawade, Advocate. For the Respondent: None.
1. Heard Shri N.B. Jawade, learned Counsel for Revision-Applicant. None for the respondent.
2. The present application in revision revolves upon the sole question - Whether a Criminal Appeal preferred challenging the order of conviction and sentence, can be dismissed for default?
3. The applicant was convicted and sentenced by the trial Court for commission of an offence under Section 138 of the Negotiable Instruments Act. The applicant/appellant preferred an appeal challenging the said order of conviction and sentence. The applicant/appellant and his Advocate remained absent on 19.12.2009, and the Appellate Court vide the order impugned passed on the same date, dismissed the appeal.
4. Learned counsel for the applicant relies upon decision of Hon'ble Supreme Court in case of Bani Singh and others vs. State of U.P. reported in AIR 1996 SC 2489 and thereafter a recent judgment delivered in the case of K.S. Panduranga vs. State of Karnataka reported in 2013 All M.R (Cri) 1485 (S.C.), following the view taken in Bani Singh's Case.
5. Perusal of the said judgments reveals that the legal position regarding the same is settled to the effect that a criminal appeal challenging an order of conviction and sentence cannot be dismissed for default on the count of absence of appellant and his Advocate. The decision in case of Bani Singh (supra) in paragraph Nos.14, 15 and 17 reveals that the proper course to be adopted by the Court in such contingency would be to consider the record and decide the matter on merits.
6. Perusal of the impugned order reveals that such a course was not followed by the Appellate Court, resultantly the order of dismissal passed by the Appellate Court cannot be legally sustained in view of the observations contained in paragraph Nos.14, 15 and 17 of the reported judgment in case of Bani Singh (supra). The same is therefore, required to be quashed and set aside. Hence, the order dated 19.12.2009 dismissing Criminal Appeal No.85/2007 on the file of Adhoc Additional District Judge-1 and Additional Sessions Judge, Nagpur is hereby q
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uashed and set aside. The said appeal stands restored on the file of the said Court. The said Court is directed to decide the same in accordance with law. 7. Application in revision stands disposed of in the aforesaid terms.