JUDGMENT Hon’ble Amar Saran, J.—Heard learned Counsel for the applicant and learned Additional Government Advocate. 2. This application has been filed for quashing an ex parte order dated 28-5-2005 passed by the Additional Sessions Judge, Court No. 13, Kanpur Nagar in Criminal Appeal No. 9 of 2005, under Section 138 of Negotiable Instruments Act dismissing the appeal for non-prosecution and the order dated 27-9-2006 whereby the learned Judge has refused to recall the said order dated 28-5-2005. 3. In my opinion this case can be decided at this stage itself relying on the case laws cited by the learned Counsel for the applicants and there is no need to issue notice to opposite party No. 2 or directing the State to file a counter-affidavit and keeping this matter unnecessarily pending before this Court. This position has not been disputed by the learned Additional Government Advocate. 4. The facts of this case were that the applicant had been convicted by the Special Metropolitan Magistrate, Kanpur Nagar by an order dated 24-12-2004 in case No. 675 of 2003 and sentenced to three months simple imprisonment under Section 138 of the Negotiable Instruments Act because his cheque of Rs. 1,30,000 had bounced. The learned Magistrate also directed the applicant to pay a sum of Rs. 1,80,000/- to the complainant as compensation within 30 days from the date of order, failing which he will have to pay interest on the sum at the rate of 10% per annum till the date of payment of the amount. 5. It appears that when the appeal was filed against the said judgment before the learned Additional Sessions Judge-13, Kanpur Nagar, the Counsel for the appellant-applicant moved adjournment applications on 18-3-2005, 31-3-2005, 19-4-2005, 29-4-2005 and 10-5-2005. Even when the case was heard on 28-5-2005 no one appeared on behalf of the applicant and the applicant also remained absent. The Court observed that no useful purpose would be served in keeping the case pending for an indefinite period of time and dismissed the appeal for non-prosecution and it was sent back to the lower Court and the Magistrate was directed to take coercive measures including warrant for the arrest of the applicant and also to take coercive measure against his sureties. 6. 6. As already mentioned herein above the application seeking recall of the said order dated 28-5-2005 was also rejected by the learned Additional Sessions Judge on 27-9-2006 on the ground that the Court had no power to review the earlier order and the applicant was absent even on the date of hearing by the Court on 27-9-2006. 7. Learned Counsel for the applicant has, however, drawn my attention to three recent decisions of the Apex Court in Ram Abhilakh v. State of U.P. (2007) 2 SCC (Cri) 54; Ashok Manikchand Chankeshwara and others v. H.R. Barge and another, (2007)1 SCC (Cri) 652 and Madan Lal Kapoor v. Rajiv Thapar and others, (2007)3 SCC (Cri) 437. 8. In all the three decisions it has been held that criminal appeal should not be dismissed in default, but it should be decided on merits and despite the notice to the appellant if neither the Counsel nor the appellant is present, the Court should decide the appeal on merit and if the appellant is in jail, the Court can appoint a lawyer on state expense, but that is not the case of the appellant. 9. It is true that the appellate order dated 28-5-2005 and the order refusing to recalling the same dated 27-9-2006 contained no decision on merit, but it cannot be denied that the applicant and his Counsel were inveterate absentees when the case was called out on several occasions. 10. However, in view of the decisions of the Apex Court cited above, I have no option but to set aside the orders dated 28-5-2005 and 27-9-2006 passed by the Additional Sessions Judge, Kanpur Nagar and to remand the case to the appellate Court to decide the appeal after hearing the appeal on merits. However, looking to the conduct of the appellant and his Counsel in repeatedly absenting themselves before the Court concerned and in moving an application containing flimsy reasons for not appearing on so many dates before the appellate Court, it is directed that the non-bailable warrants issued against the applicant as far back as on 28-5-2005 shall be kept in abeyance only for a period of three weeks, in which period the applicant shall surrender before the Court concerned and seek fresh bail. In case of failure by the applicant to appear before the Court concerned within the aforesaid period, the relief granted by this order shall stand automatically withdrawn. 11. In case of the appellant again not cooperating or appearing before the appellate Court through Counsel or personally for the hearing of the appeal or at the time of pronouncement of the judgment, the trial Court shall be free to take steps for cancelling the appellant’s bail. 12. With these observations, this application is disposed of. 13. A certified copy of this order shall be given to the learned Counsel for the applicant on payment of usual charges within three days. ————