Allowed

Nitesh Sahabadi v. The State Of Jharkhand And Anr.

Jharkhand HC18 Apr 2022Cr.Rev./1255/2016

Case brief

AI extract

What is this about?

The High Court quashed an appellate order convicting the petitioner for cheque dishonour. The court held that the Sessions Court could not have entertained an appeal filed by the complainant against an acquittal, as appeal against acquittal by a victim lies with the High Court alone.

What did the court decide?

Criminal Appeal No. 55 of 2015 set aside; the lower court record sent back to the Court concerned forthwith for disposal.

Nitesh Sahabadi Vs The State Of Jharkhand And Anr. — Cheque Dishonour | Jharkhand HC (2022)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Revision No. 1255 of 2016

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Nitesh Sahabadi, s/o late Manoj Kumar Sahabadi, r/o village-J.P. Nagar, Ward No. 13, By-pass Road, Jhumritilaiya, PO-Jhumri Tilaiya, PS-Tilaiya, Dist.-Koderma …. . Petitioner

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Versus

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The State of Jharkhand

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Manoj Kumar Bhadani, s/o late Rama Shankar Prasad, r/o village-in front of Purnima Talkies, Ranchi Patna Road, Jhumri Tilaiya, Ward No.23, POJhumri Tilaiya, PS-Tilaiya, Dist.-Koderma … Opposite Parties

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CORAM: HON’BLE MR. JUSTICE SHREE CHANDRASHEKHAR

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For the petitioner : Mr. Rakesh Kumar, Advocate For the O.P No.2 : Mr. Deepak Kumar, Advocate For the State : Mr. Subodh Kumar Dubey, APP -------

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Order No. 09 /Dated: 18th April 2022

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In T.R. No.1747 of 2015 which was initiated on the basis of Complaint Case No.376 of 2014, Nitesh Sahabadi was acquitted of the charge under section 138 of the Negotiable Instruments Act,1881.

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Manoj Kumar Bhadani who is the complainant filed Criminal Appeal No. 55 of 2015 in which by a judgment dated 24^th August 2016 the accused was convicted and sentenced to SI for two years under section 138 of the Negotiable Instruments Act, 1881 and further directed to pay Rs.6,50,000/as compensation to the complainant under section 357(3) of the Code of Criminal Procedure.

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Mr. Deepak Kumar, the learned counsel for O.P No.2/complainant has raised a question on maintainability of the present criminal revision petition whereas Mr. Rakesh Kumar, the learned counsel for the petitioner has questioned maintainability of Criminal Appeal No.55 of 2015 filed by the complainant presumably under the provisions under sub-section 4 to section 378 of the Code of Criminal Procedure.

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In support of his contention that Criminal Appeal No. 55 of 2015 was not maintainable in the Court of Sessions, Mr. Rakesh Kumar, the learned counsel for the petitioner has referred to the judgment in “Subhash Chand v. State (Delhi Admn.)” (2013) 2 SCC 17.

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2 Cr. Revision No.1255 of 2016

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Mr. Deepak Kumar, the learned counsel for O.P No.2/complainant however in support of his contentions refers to the judgment in “Mallikarjun Kodagali v. State of Karnataka” (2019) 2 SCC 752 .

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On a reading of the judgment under challenge, I find that the judgment in Criminal Appeal No. 55 of 2015 requires interference by this Court. In paragraph no. 6 of the judgment, the learned appellate Court has recorded that the accused did not appear though he was informed about the case. Paragraph no.6 of the judgment dated 24^th August 2016 reads as under:

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“6. The learned P.P. appeared to respondent no.1 supported the impugned judgment. The respondent no.2/accused had not appeared in this case despite of being informed about the case and hence his argument was not heard.”

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No judgment of conviction can be recorded in absence of an accused and in all cases before the appellate Court proceeds to hear the case legal assistance is required to be provided to the accused if he is not represented by his counsel.

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In “Rishi Nandan Pandit v. State of Bihar” (1999) 8 SCC 644 the Hon'ble Supreme Court has observed as under:

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“4.When the counsel engaged by the appellants in a criminal appeal does not turn up there is no obligation on the court of appeal to wait for him or even 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 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. A.M. Ahmadi, C.J., speaking for the Bench, has stated the legal position thus: (SCC p. 726, para 14)

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“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. 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 that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution.”

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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 the State's expense to assist the court. The following observations of the Bench are pertinent: (SCC p. 726, para 15)

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“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 deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it

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3 Cr. Revision No.1255 of 2016

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from doing so.”

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…………………………………………………………………………… 9.As a matter of legal position the court is not precluded from perusing the records and come to its own conclusion unaided by any legal practitioner to project the points favourable to the accused, when the counsel engaged by them does not turn up to argue. But the three-Judge Bench of this Court indicated in Bani Singh v. State of U.P. that it is a matter of prudence that the court may, in an appropriate case, appoint a counsel at the State's expense to argue for the cause of the accused. Of course it is for the court to determine, on a consideration of the conspectus of the case, whether it does or does not require such legal assistance. There can be appeals which could be disposed of unassisted by counsel to put forth the favourable features for the accused. But if the sentence imposed by the judgment impugned in the appeal is of a substantial range it is advisable to seek the assistance of a legal talent.”

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9. In “Subhash Chand ” the Hon'ble Supreme Court has observed as under:

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“23. In view of the above, we conclude that a complainant can file an application for special leave to appeal against an order of acquittal of any kind only to the High Court. He cannot file such appeal in the Sessions Court. In the instant case the complaint alleging offences punishable under Sections 16(1) & (1-A) read with Section 7 of the PFA Act and the Rules is filed by complainant Shri Jaiswal, Local Health Authority through Delhi Administration. The appellant was acquitted by the Metropolitan Magistrate, Patiala House Courts, New Delhi. The complainant can challenge the order of acquittal by filing an application for special leave to appeal in the Delhi High Court and not in the Sessions Court. Therefore, the impugned order [Criminal Misc. Case No. 427 of 2009, decided on 7-1-2011 (Del)] holding that this case is not governed by Section 378(4) of the Code is quashed and set aside. In the circumstances the appeal is allowed.”

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The judgment in “ Mallikarjun Kodagali” is to the effect that a victim of crime need not seek leave to appeal to the High Court if the judgment was passed on or after 31^st December 2009.

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Accordingly, the judgment dated 24^th August 2016 passed in Criminal Appeal No. 55 of 2015 is set-aside leaving the parties to avail remedy as available to them in law.

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Criminal Revision No. 1255 of 2016 is allowed.

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Let the lower Courts records be sent back to the Court concerned forthwith.

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Let a copy of this order be transmitted to the Court concerned through “Fax”.

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(Shree Chandrashekhar, J.)

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sudhir

Nitesh Sahabadi v. The State Of Jharkhand And Anr.

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Nitesh Sahabadi v. The State Of Jharkhand And Anr.

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