Case Note & Summary
The applicant, Jafar Shamshuddin Momin, was convicted by the Judicial Magistrate First Class, Parner, for an offence under Section 138 of the Negotiable Instruments Act, 1881, in Summary Case No.814/2003. He was sentenced to rigorous imprisonment for one month and a fine of Rs.18,000/-, with a default sentence of three months. The fine amount was directed to be paid to the complainant, respondent No.1, under Section 357 of the Code of Criminal Procedure, 1973. The applicant appealed against this conviction before the Sessions Judge, Ahmednagar, in Criminal Appeal No.39/2010. The appeal was listed before the District Judge-1/Additional Sessions Judge on 03.03.2010. On that date, the appellant and his advocate were absent, and the learned Sessions Judge dismissed the appeal for default, observing that the appellant was absent and his advocate was also absent, and there were no reasons to prolong the matter. The applicant then filed the present criminal application under Section 482 of the CrPC before the Bombay High Court, challenging the dismissal order. The High Court noted that the appellate court had not even issued notice to the respondent or passed a formal order admitting the appeal. The court held that a criminal appeal cannot be dismissed for default; the appellate court must decide the appeal on its merits even if the appellant or his counsel is absent. Relying on the principle that the appellate court has no power to dismiss an appeal for non-prosecution, the High Court set aside the impugned order and remanded the matter to the Sessions Judge for fresh hearing on merits. The court directed the Sessions Judge to decide the appeal in accordance with law, preferably within three months from the date of receipt of the order. The criminal application was allowed, and the rule was made absolute.
Headnote
A) Criminal Procedure - Appeal - Dismissal for Default - Section 386 CrPC - Appellate court cannot dismiss an appeal for default; it must decide the appeal on merits even if the appellant or his counsel is absent. The High Court set aside the order of the Sessions Judge dismissing the appeal for default and remanded the matter for fresh hearing on merits. (Paras 5-8) B) Negotiable Instruments Act - Dishonour of Cheque - Conviction - Section 138 - The applicant was convicted under Section 138 of the Negotiable Instruments Act and sentenced to one month RI and fine of Rs.18,000/-. The appeal against conviction was dismissed for default by the Sessions Judge. The High Court restored the appeal for hearing on merits. (Paras 5-8)
Issue of Consideration
Whether a criminal appeal can be dismissed for default without considering the merits, and whether the appellate court has the power to dismiss an appeal for non-prosecution.
Final Decision
The impugned order dated 03.03.2010 passed by the learned Sessions Judge, Ahmednagar in Criminal Appeal No.39/2010 is set aside. The matter is remanded to the learned Sessions Judge for fresh hearing on merits. The Sessions Judge is directed to decide the appeal in accordance with law, preferably within three months from the date of receipt of the order. The criminal application is allowed. Rule made absolute.
Law Points
- Criminal appeal cannot be dismissed for default
- appellate court must decide on merits
- Section 138 Negotiable Instruments Act
- Section 386 CrPC
- inherent powers of High Court
