IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 21ST DAY OFOCTOBER 2008

BEFORE

THE HON’BLE MR.JUSTICE ARALI NAGARAJ

CRL.R.P. No.567/2007

BETWEEN:
Smt. Saroj Jain                                                Petitioner

AND:
M/s. Jain Agencies                                        Respondent

This Crl.R.P. is filed under Section 397 Cr.P.C. praying to reverse the judgment and sentence of fine Dt.6.2.2004 in C.C.No.30277/2001 passed by the learned XIII Addl.C.M.M. Bangalore, which is confirmed by the Addl.SJ and PO, FTC-IV, Bangalore City, in CrlA.No.161/2004 dated 6.1.2007 and acquit the petitioner.

This Crl.R.P. coming on for arguments this day, the Court made the following:-

ORDER

The petitioner herein, who is accused in C.C.No.30277/01 on the file of the learned XIII Addl. CMM, Bangalore, (hereinafter referred to as the “Trial Court” for short) has challenged the correctness of the judgment and order of conviction dated 2,2,2004 passed in the said case convicting him for the offence under Section 138 of Negotiable Instruments Act (hereinafter referred to as the “N.I. Act” for short). He has also challenged herein the judgment dated 6.1.2007 passed in Crl.Appeal No.161/2004 by the learned Addl. Sessions Judge and Presiding Officer, Fast Track Court IV, Bangalore City (hereinafter referred to as the ‘Appellate Court’ for short) confirming the said judgment and order of conviction of the Trial Court.

2.        Heard the arguments of the learned counsel for both the sides. Perused both the impugned judgments and also the material on record. At the outset the learned counsel for the petitioner submitted that the appellate Court disposed of the said appeal on merits by taking the arguments as ‘nill’ on the ground that despite sufficient opportunity, the learned counsel for the appellant did not choose to suit his arguments, and therefore, the impugned judgment passed by the Appellate Court deserves to be set aside and the matter requires to be remanded to the Appellate Court for giving an opportunity to the appellant to engage another counsel for him and to submit his arguments in the said appeal.

3.        Per contra, Sri.M.G. Kumar, the learned counsel for the respondent – complainant strongly contended that the appellant and his counsel were not diligent before the Appellate Court in prosecuting the appeal and therefore he cannot maintain the present revision petition under Section 397 r/w Section 401 of Cr.P.C. inasmuch as the conviction of the petitioner herein, was not for any offence under IPC, but it was for the offence under Section 138 of Negotiable Instruments Act.

4.        As to the disposal of the criminal appeal against the judgment and order of conviction in the absence of the appellant and his counsel, there are three decisions of Hon’ble Supreme Court in

1. AIR 1987 SC 1500 (Ram Naresh Yadav and others, Vs. State
of Bihar)

2. AIR 1990 SC 1224 (Dr. Jainendrakumar Vijaykumar Badjate
Vs. State of Maharashtra)

3. AIR 1999 SC 3850 (Rishi Nandan Pandit and others
Vs. State of Bihar)

In first of these cases i.e., in AIR 1987 SC 1500 it is laid down that dismissal of an appeal against conviction for non-prosecution is permissible. It is observed at paragraph No.2 therein as under:

Para.2. ……………………. The courts can dismiss the appeal for non-prosecution and enforce discipline or refer the matter to the Bar Council with this end in view. But, the matter can be disposed of on merits only after hearing the appellant or his counsel. The court might as well appoint a counsel at State cost to argue on behalf of the appellants. Since the order of conviction and sentence in the present matter has been confirmed without hearing either the appellants or counsel for the appellants, the order must be set aside and the matter must be sent back to the High Court for passing an appropriate order in accordance with law after hearing the appellants or their counsel and on their failure to engage counsel, after hearing counsel appointed by the Court to argue on their behalf ……………”

In second of the said decision i.e., in AIR 1990 SC 1224, it is observed at paragraph No.2 as under:

Para.2: “We find that Criminal Appeal No.25 of 1986 has been decided without the learned counsel of the appellant (accused) who was appointed by the Court not being present. We do not wish to enter into the question as to why the counsel was not present. That is a matter which can be considered by appropriate authorities, if they think fit. In the circumstances, however, we set aside the judgment of the High Court and direct the Criminal Appeal No.25 of 1986 shall be heard afresh by the High Court. …………..”

In third of the said decisions i.e., in AIR 1999 SC 3850, it is laid down at paragraphs Nos. 4 and 5 as under:

Para.4: “When the counsel engaged by the appellant in a criminal appeal does not turn up there is no obligation for the Court of appeal to wait for him orever to adjourn the case awaiting his presence. The earlier view of a two Judge Bench of this Court in Ram Naresh yadav v. State of Bihar, AIR 1987 SC 1500 : (1987 Crl.LJ 1856), that in such a situation the Court could only dismiss the appeal for default, has been held erroneous by a three-Judge Bench of this Court in Bani  Singh v. State of U.P. (1996) 4 SCC 720: (1996 AIR SCW 2986 : AIR 1996 SC 2439 : Crl.LJ 3291) ………

“The law clearly expect 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 satisfying 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 case,AIR 1987 SC 1500 : (1987 Crl LJ 1856) that if the appellant or his pleader is not, the proper course would be to dismiss an appeal for non-prosecution.

Para.5: “Nonetheless the learned Chief Justice hastened to add that if the counsel is absent there is nothing in law which precludes the Court of appeal from appointing another counsel at State’s expense to assist the Court. The following observations of the bench are pertinent:

“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 deeds it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so.”

5.        Following the principles laid down by the Hon’ble Supreme Court in the above three cases, I am of the considered opinion, that the Appellate Court committed serious error in disposing of the appeal of the revision petitioner on merits without appointing an Amicus Curiae or a Standing Counsel and without hearing the arguments of such Amicus Curiae or the Standing Counsel on behalf of the appellant-accused and thereby confirming the judgment of conviction passed by the Trial Court.

6.        The learned counsel for the respondent-complainant placing reliance on the decision of the Hon’ble Supreme Court in the case of DHARAM PAL AND OTHES VS. STATE OF UP reported in AIR 2008 SCW 357 strongly contended that the Appellate Court has powers to dispose of the appeal against conviction on merits in the absence of the appellants. He placed strong reliance on observations at paragraph No.8 of the said judgment, which read as under:

Para.8: “That apart, the decision of this court in Bani Singh’s case (supra) would clearly show that when the accused does not appears, it is the bounden duty of the High Court to look into the records and the other material on record including the judgment of the Trial Court and thereafter, decide the appeal on merits which would be due compliance with Sections 385 and 386 of the Code in disposing of criminal appeals. While dealing with the procedure for disposing of a criminal appeal, this Court in Bani Singh’s case (supra) has clearly laid down that the dismissal of an appeal for default or non-prosecution without going into the merits of the case is clearly illegal and that the Appellate Court must dispose of the appeal on merits after perusal and scrutiny of record and after giving a hearing to the parties, if present, before disposal of the appeal on merits. This Court, in that decision, further held that the Appellate Court must dispose of the appeal after perusal of the record and judgment of the trial court, even if the appellant or his counsel was not present at the time of hearing of the appeal. The only exception, as we find from the aforesaid decision of this court, is that if the appellant is in jail and his counsel in not present, the court should adjourn the case to facilitate the appearance of the appellant. There is yet another exception to the rule, namely, that in an appropriate case, the court can appoint a lawyer at the State expense to assist the court. Therefore, the High Court, in our view, was justified in taking the assistance of the Assistant Government Advocate and after taking such assistance and considering the entire evidence on record, the High Court passed the judgment under appeal before us holding that the appellants were guilty of the offence, not under Section307/34 of the IPC but under Section 304, Part II of the IPC and directed them to undergo 7 years’ rigorous imprisonment. In doing so, the High Court affirmed the findings of the trial court but differed on the point of the offence committed by the appellants and the corresponding punishment to be awarded to them.”

7.        From the above decisions of Hon’ble Supreme Court, it is quite clear that in an appropriate case the appellate Court has to appoint a lawyer at the State expense to assist it and then dispose of the appeal against conviction on merits. In the instant case, if the judgment and order of conviction passed by the Trial Court is confirmed in appeal, the appellant-accused would be liable to pay heavy amount of fine besides incurring criminal liability of undergoing imprisonment. Therefore, even applying the above principles to the facts of the present case, I am of the considered opinion that the Appellate Court was not justified in dismissing the appeal of the accused on merits without hearing the arguments of his counsel.

8.        For the reasons aforesaid, the present revision petition is allowed. The impugned judgment dated 6.1.2007 passed in Crl.Appeal No.161/2004 by the Appellate Court is hereby set aside. The matter is remitted to the Appellate Court with a direction to afford a reasonable opportunity of hearing to the learned Counsel for the appellant, who is to be appointed by the appellant. Sri. H.V. Subramanya, the learned counsel for the petitioner-accused submits that the petitioner would appoint a counsel for him to argue the appeal before the Appellate Court. However, if the appellant.fails to do, the Appellate Court shall appoint an amicus Curiae or a Standing Counsel for the appellant at the cost of the State Government and then, after hearing the said Amicus Curiae/Standing Counsel, the appeal shall be disposed of in accordance with law.
9.        Records be transmitted to the Appellate Court forthwith along with a copy of this order. Pending disposal of the appeal the operation and execution of the order of sentence passed by the Trial Court shall remain suspended. The appellant shall appear before the Appellate Court on 3.11.2008 without any further notice.

10.        The Appellate Court shall dispose of the appeal as expeditiously as possible having regard to the similar old matters pending on its file.

Sd/-
Judge

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