A.V. Potdar, J.
1. None for respondent No. 1, though duly served.
2. By this application the applicant has assailed the order passed by learned Sessions Judge, Ahmednagar in criminal appeal No. 39/2010. Vide judgment and order dated 03.03.2010, the learned Sessions Judge has dismissed the criminal appeal for default.
3. Rule.
4. Rule made returnable forthwith. By consent of the parties, heard finally at the stage of admission itself.
5. Such of the facts, as are necessary for the just decision of this criminal application may briefly be stated thus-
A) Present respondent No. 1 had filed complaint bearing Summary Case No. 814/2003 Under Section 138 of the Negotiable Instruments Act against the applicant before the JMFC, Parner. By the judgment and order dated 27.01.2010, learned JMFC, Parner allowed the summary case and pleased to convict the applicant for an offence punishable Under Section 138 of the Negotiable Instruments Act. The applicant was sentenced to suffer RI for one month and to pay a fine of Rs. 18,000/-, default to suffer further RI for three months. It was also ordered that if the fine amount is deposited by the applicant, the same be paid to respondent No. 1, as per Section 357 of the Criminal Procedure Code.
B) It further appears that the applicant had challenged the said order by preferring criminal appeal No. 39/2010 before the learned Sessions Judge, Ahmednagar. It appears that the said appeal was allotted to the Court of District Judge-1 / Additional Sessions Judge for disposing of the same in accordance with law. It also appears that thereafter the matter appeared on the board of District Judge-1 / Additional Sessions Judge, Ahmednagar on 03.03.2010 and the learned Sessions Judge, pleased to reject the appeal by observing that 'appellant is absent. His advocate also absent. He had obtained exemption on 02.03.210. No reasons to prolong. Appeal rejected.' The said order is impugned in this criminal application.
6. Learned Counsel for the applicant has contended that before passing the impugned order, the learned Sessions Judge had not even issued notice for appearance of the respondent. It is also contended that the formal order 'appeal admit. Call R & P' was also not passed and on the very day of appearance, without considering the merits, the appeal is rejected and dismissed for default.
7. This Court had an occasion to deal with such a situation in the matter of 'Kisan @ Kanhyalal s/o. Harishnkar, v. The State of Maharashtra, Through Police Station, Kannad' in Criminal Application No. 3333/2006 decided on 14th November 2006. This Court, in para 5 of the said judgment has observed that
now it is settled law, that the Criminal Appeal cannot be dismissed for default for want of prosecution. It is further settled that if the Advocate for the appellant does not appear or refuses to argue, the Court should appoint an Advocate as amicus curiae and then proceed to dispose of the appeal on merits. In this respect, a useful reference can be made to the judgments of the Apex Court in case of (i) Parasuram Patel v. State of Orissa reported in : (1994) 4 SCC 664 and (ii) State Khalili v. State of Uttar Pradesh reported in 1982 Pradesh SCC (Cri) 143. In that view of the matter, the impugned order passed by the lower appellate court is patently erroneous. The judgment and order of the lower appellate court, thereby dismissing the appeal in default, is passed in ignorance of the law laid down by the Apex Court.
8. Even the Full Bench of Apex Court, in the matter of 'Bani Singh v. State of U.P.' reported in : AIR 1996 SC 2439 has observed that -
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. 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 satisfying itself that the reasoning and findings recorded by the trial Court are consistent with the material on record.
9. Perusal of the impugned order discloses that merely for non appearance of the appellant and his advocate, even without issuing notice to the respondent and without calling the record from the trial court, the learned first appellate court has rejected the appeal, which is against the provisions of law and hence requires interference. In the premise, the impugned order deserves to be quashed and set aside.
10. Accordingly, the criminal application succeeds. The order dated 03.03.2010 passed by learned Sessions Judge, Ahmednagar in Criminal Appeal No. 39/2010 is hereby quashed and set aside. The applicant is directed to appear before the first appellate court within a period of 4 weeks. Within mean time, the protection granted to the applicant on 26.05.2010 to continue. The matter is remitted to the first appellate court with a direction to District Judge-1 and Additional Sessions Judge, Ahmednagar to decide the Criminal Appeal No. 39/2010 in accordance with law after calling Record and Proceedings and after issuing notice to the respondents.
11. Rule is thus made absolute on the terms indicated above. Application stands disposed of accordingly.