Remanded

M/S Rajesh Poultry Farms Ensanpally (v) R.M. Medak., v. Smt.Putnala Lingavva, Medak Dt and Anr, Rep Pp.

Telangana HC1 Sept 2022CRLRC/1072/2016

Case brief

AI extract

What is this about?

In Criminal Revision Case No. 1072 of 2016, the Telangana High Court quashed a higher court order dismissing an appeal for non-prosecution. Relying on Supreme Court precedents like Bani Singh, the bench held that an appeal must be disposed of on merits after perusal of the record, not solely on default grounds. The matter was remanded to the appellate court for a fresh hearing.

What did the court decide?

The impugned order dismissing the appeal for non-prosecution issued by the Additional District Judge was set aside, and the matter was remanded to the appellate court for disposal on merits.

M/S Rajesh Poultry Farms Ensanpally (v) R.M. Medak., Vs… — Cheque Dishonour | Telangana HC (2022)

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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THURSDAY ,THE FIRST DAY OF SEPTE[/BER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE DR. JUSTICE G.RADHA RANI

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CRIMINAL REVISION CASE NO: 1072 OF 2016

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Criminal Revision Case under Section 397 & 401 of Cr.P.C against the Docket Order dated. 29-01-2016 passed in Crl. A. No. 42 of 2015 on the file of the Court of the lV Additional District & Sessions Judge (MVACT) tVledak at Siddipet Confirming the Judgment daled 17-12-2014 passed in C.C. No. 71 5 of 2012 on the file of the Court of the Judicial lVlagistrate of First Class Special Mobile Court at Medak .

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Ilctrveen:

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M/S Rajesh Poultry Farms Ensanpally (V) R.M., Siddipet Medak District, Rep. by its Managing Pa(ner Komaravelly Shekar'@ Shekaraiah Son of Rajesham, Aged 63 years, Occ;Business, R/o. H.no.1-2-45, Paripally Skeet, Siddipet Medak District.

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...PETITIONER/APPE LLANT/COMPLAINANT

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AND

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Smt.Putnala Lingavva, Wo. Ramulu, Aged 46 years, Occ: Business, Fl/o. H.no. 19-56/4, Prashanthnagar, Siddipet town, tt/edak District . ... RESPONDENT/ RESPONDENT/ACCUSED

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The State of Telangana, through rep. by State Public Prosecutor, High Court,Hyderabad

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....RESPONDENT/RESPONDENT

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CRLRCMP. NO: 1490 OF 2016

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Petition under Section 482 of Cr PC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court rnay be pleased to DISPENSE WITH filing of the certified copy of Judgment vide C.C. No. 715 o'f 2012 dt. 17-12-2014 on the file of the Hon'ble Judicial Magistrate of First Class Spl. Mobile Court at Medak for the present Revision Case and pass such other order or orders as deem fit and proper.

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Counsel for the Petitioner :SRl. PALLE^SRIHARINATH

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Counsel for the Respondent No.'l : SRl.^{K RAMREDDY}

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Counsel for the Respondent No.2^{: PUBLIC PROSECUTOR(TG)}

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The Court milde the following: ORDER

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DT.CRR,J CrL RC No. t 07 2 of 201 6

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I'HE HON'BLE Dr. JUSTICE G. RADHA RANI

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CRIN{INAL ITEVISION CASE No.I072 OF 2016

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ORDER:

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This criminal revision case is filed against the docket order passed in

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Crl.A.No.42 of 2015 dated 29.1.2016 dismissing the appeal for nonprosecution confirming the judgment in CC No.7l5 of 2012 dated 1712.2014 on the file of Judicial Magistrate of First Class, Special Mobile Court at Medak acquitting the respondent No.l-accused for the charge under Section 138 of the Negotiable Instruments Act (for short^.NI Act,).

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Heard the leamed counsel for petitioner-appellant-complainant and the learned counsel for the respondent No. 1-accused.

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As seen from the record, the petitioner filed a complaint under Section 138 of the M Act before the Judicial Magistrate of First Class, Special Mobile Court, Medak and after conducting trial the matter was disposed of on merits acquitting the accused for the offence under Section 138 of M Act finding him not guilty.

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Dr.GRIt,t CrLR(' fo.l07:^of:016

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Chatlenging^{the same, the complainant preferredan appcal and} the same^{ri as liste<las Crl.A. No'42of 2015 on thc filc of VI Additional} District Jutlge,^{Siddipet.The VIII AdditionatDistrict Judge' Medak' FAC of} VlAdditionalDistrictJudge,siddipetdismissedtlreappealon2g.0l.2016for non-prosec trtion^{by the appellant' Aggrievedby the same' the complainant} preferred this revision^{casecontendingthat the appellatecourt committed a} grave illegality^{in dismissing the appeal for non-prosecutionon the ground of} absence of^{the counsel.No appeal couldbe dismissedfor default but should} be decided^{on meritsas per the judgmentof the Hon'ble Apex Court in Bani} Singh and^{others v. State of U'P'r ' The appellatecourt ought to have noted} that because^{of the defaultof tiis Advocate, the party should not suffer for the} inaction of^{his counsel. The language of Section 385 Cr'P'C' would make it} clear that the^{appellatecourt could not dismissthe appeal summarily but shall} cause issuc^{notice to the appellant'It was the duty of the appellate courtto} dispose of^{the appealby cross checking the reasoning with the evidence on} record with^{a view to satisfi itself whether the reasoningand findings} recordedbythetrialcourtwereconsistentwiththematerialonrecordor otherwise^{and prayedto set asidethe docket order dated 29 'Ol '2016 passed in}

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'^{:.sso1n1scc ;zo1}

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Dr.GRR,t C,LRC nio. t072 oI20l6

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Crl.A. No.42 of 2015 and to remand the^{matter lor disposalof the sameon} merits in accordance with larv.

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The learned counsel for the respondent No.l^{complainant also} reported no objection to remand the matter^back to^{the appellatecourt for} disposal of the same on merits in accordance^withlaw'

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The Hon'ble Apex Court in llani Singh's case^{(supra) heldthat:}

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Section 385(2) clcarly states that the^Appcllate Court cannot dismiss thc appeal summarily,^{it 'shall',} after issuing notice as required by^{subsection(1),send} lor thc record of the casc and hear the^{parties. The} proviso, however, posits that ifthe appeal is restricted to the extent or legality of the sentence, the^Coun need not call ,for thc record. On a^{plain reading} of^the said provision, it seems clear to us that once^the Appellate Court, on an examination of^{the grounds} of appeal and the impugned^{judgment,decides} to^admit the appeal for hearing, it must call^for the^recordand then decide the appeal finally, unless the^appealis restricted to the extent and legality of the^sentence Obviously, the requirement to call for the^recordis provided for to enable the Appellate Court to^peruse the record before finally deciding the^appeal. It^{is not} an idle formality but casts an obligation on^{the court} to decide the appeal only after it has^{perused the} record. This is not to say that it^{cannot be waived} even where the^parti€s consent to its^{waivcr. This} becomes clear from the opening^{words ofSection} 386 which say that^{'afterperusing suchrecord' the} court may dispose of the appeal. Horvever,^this Section imposes a further^{requirementof hearing the} appellant or his pleader, if^{he appears,and the public} prosecutor, il he appears. This is^{an extensionof the} requirement of Section 385(l)which^{requires the} court to cause noticc to^{issue as to thetimeand place}

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DI-CRR.J ( rt.R( of20t6 ^i'-t07:

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of hcaring of the appeal. Once such a notice is issued the accused or his pleader, il he appears, must be heard.

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9- The question is, rvhere thc accused is the appcllant and is represented by a plcader, and the lattcr fails to appear when the appeal is called on for hearing, is the Appellate Court emporvered to dispose of the appeal aftcr perusing the record on its orvn or, must it adjourn the appeal to a future date and intimatc thc accused to be present on the next date of hearing?

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I0. In Shyam Deo's case, this Court ruled that the Appellatc Court must peruse the record bclore disposing of the appeal; the appeal has to tre disposed of on merits evcn if it is being disposcd ol in^the absence of the appellant or his^{pleader. Interyrcting} Section 423 of the Old Code^(the corresponding provisions arc Sections 385-386 of the present Code), this Cou( in paragraph 19 of the^judgment held^as under:

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"The considcration of the appeal on merits at the stagc of final hearipg and to arrive at a decision on^merits and to pass final orders will not be^{possibleunlessthe} reasoning and findings recorded in the^judgment under appeal are tested in the light ofthe^record ofthe case. After the records are belore the court^{and thc} appeal is set down for hearing, it is essential^{that thc} Appellate Court should (a)^peruse such record,^(b) hear the appellant or his pleader, if he appears, and^(c) hear the^{publicprosecutor,} if^he appears.

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After complying with these requirements,^the Appellale Court has full power to^pass any of^thc orders mentioned in the section. It is to be^{noted that} if the appellant or his pleader is not^present or if^the public prosecutor is not present, it is not obligatory on the Appellate Court to^postpone the^{hearingof the} appeal. lf the appellant or^{his counsel} or^{the public} prosecutor, or both, are not present, the Appellate Court has^jurisdiction to^proceed with^{the disposalof} the Appeal; but that disposal must lre^{after the} Appellate Court has considered the appeal on^merits. lt is clear that the appeal must be considercd^and

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Dr GRR.J C.l.RC i:o.107) oI20t6

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)

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disposed ol on merits irrcspcctive ol thc^{f'act whcthcr} the appellant or his counscl^{or thepublicprosccutoris} present or not. Llvcn if the appeal is disposcd ofⁱⁿ thcir absence, the dccision must be^{al'ter consideration} on merits."

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(llmphasis addcd)

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We have carefully^{considered the vieu'expressed} in the said two decisions ol this Court^{and,wc may} state that thc vierv taken in Shyarn^{Dco'scase appears} to be sound except lor a minor clarification^{rvhich rve} consider necessary to mentioll. The^{plain language} ofsection 385 makes it clear that it thc^Appellate Court does not consider the appcal fit for^summary dismissal, it 'must' call for the record^{and Section} 386 mandates that after the record is^received,the Appellate Court rnay dispose of the appeal^after hearing the accused or his^{counsel.Thereforc,the} plain language ofSections 385-386 does^not contemplate dismissal of the appeal for^non- prosecution simplicitor. On the contrary, the Code envisagLs disposal of the^appeal on^meritsafter 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^andfindings recorded by the trial court are consistent^{with the} material on record. The law, therefore,^{does not} envisage the dismissal of the appeal for^defaultor non-prosecution but only^{contemplates disposalon} merits after perusal of the record. Therefore,^with respect, we find it difficult to agree^{with the} suggestion in Ram Naresh^{Yadav'scasethat if the} appetlant or his^pleader is not^{present, theproper} course would be to dismiss an appeal^{for non-} prosecution.

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)

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l7.In view ofthe^position in law^{explained above, we} are of the view that the High Court^erredin dismissing the appeal for non-prosecution^simplicitor without examining the merits. Wc,^{therefore,set aside} the impugned order and remit^{the appeal to the High}

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DT.GRR.J C.t-k( )o 1tt7) if )016

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Court lor disposal on mcrits in the light ol this .judgment.^{'I'he appeal willstandallorvcd} accordingly."

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Hence, considering the^judgment of the Hon'ble Apex Court and the procedurc as entailed in Section 385 Cr.P.C. was not followcd by the lo'uver appellate Court, it is considered fit to remand the matter by^settingaside the impugned docket order.

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In the result, the Criminal Revision Case is allowed and the

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matter is rcmanded back to the lower appellate court to dispose ol^{the matter} on mcrits ir accordance with law and the docket order^{passed in Crl.A.No.42} of 2015 dated 29. 1.2016 dismissing the appeal for non-prosecution^confirming the^judgmerrt in CC No.7i5 of 2012 dated 1712.2014 on the file of Judiciat Magistrate , 'f Filst Class, Special Mobile Court at Medak, is^{set aside.}

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Misccllaneous Petitions, if any^pending, shall stand closed

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SD/.K.SRINIVAS RAO JOINT REGISTRAR ,TRUE COPY// L SECTIOft-OFFICER

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To,

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