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Calcutta High Court · body

2010 DIGILAW 1321 (CAL)

Satya Prosad Mitra v. STATE OF WEST BENGAL

2010-11-12

ASHIM KUMAR ROY

body2010
JUDGMENT 1. THE present petitioner was convicted in a case relating to an offence punishable under section 138 of the Negotiable Instruments Act by the learned Judicial Magistrate, 7th Court, Howrah. Against the said order of conviction and sentence, the petitioner preferred an appeal before the learned Sessions Judge, Howrah being Criminal Appeal No. 24 of 2008 along with an application for condonation of delay of 85 days in preferring the appeal. However, before taking up for hearing the application for condonation of delay the petitioner was directed to deposit a sum of Rs. 50,000/- towards the payment of compensation. On the failure of the petitioner to deposit the said amount of money, the appeal was dismissed, hence this criminal revision. 2. NOW, having gone through the impugned order, I find on the date when the order of dismissal was passed a prayer for adjournment was made on behalf of the petitioner on the ground a criminal revision being C.R.R. No. 4008 of 2009 is pending before this Hon'ble High Court, where the petitioner challenged the direction passed in connection with the criminal appeal in question, by the Appellate Court for depositing the compensation amount. However, the learned Appellate Court dismissed the application for condonation of delay only on the ground that it does not appear from the letter addressed by the learned Advocate of the petitioner whether the said criminal revision was at all been admitted or not and nor there is any stay order. The Appellate Court was of the further opinion that since in terms of his earlier order no amount was deposited thereby the petitioner flouted the Court's order. It further appears from the ordering portion of the order that delay was condoned but appeal was dismissed. The relevant portion of the order is quoted below: "Delay is condoned and as such appeal is also dismissed." Heard the learned Advocate appearing on behalf of the petitioner as well as the learned Advocate appearing on behalf of the State. None appeared on behalf of the complainant/opposite party. Affidavit -of- service filed in Court is already lying with the records. 3. IT is well-settled the dismissal of appeal even on the ground of limitation is a dismissal for all purposes. In this connection reference may be made to the case of Bindeshwari Prasad Singh @ B.P. Singh and Ors. None appeared on behalf of the complainant/opposite party. Affidavit -of- service filed in Court is already lying with the records. 3. IT is well-settled the dismissal of appeal even on the ground of limitation is a dismissal for all purposes. In this connection reference may be made to the case of Bindeshwari Prasad Singh @ B.P. Singh and Ors. vs. State of Bihar (Now Jharkhand) and Anr., reported in 2002 SCC (Cri) 1448. 4. NOW, having regards to the impugned order, I am surprised as to how even before condonation of delay in preferring a criminal appeal and before admission of appeal against an order of conviction and sentence, a Court can direct payment of compensation amount. The learned Judge is well advised to note that the statutory appeal is a substantive and vested right of the appellant and same is not subject to any condition, unless statutes specifically provide for the same. In this connection it may be noted in the case of Stanny Felix Pinto vs. Jangid Builders Private Limited and Anr., reported in 2001 SCC (Cri) 345, the Hon'ble Supreme Court found no illegality or mistake when after admission of a criminal revision against an order passed by the Appellate Court sustaining an order of conviction under section 138 of the Negotiable Instruments Act, the High Court directed the convict to deposit a part of the compensation amount. In the said case the High Court never directed payment of compensation amount even before the admission of such application and as a precondition for entertainment of such appeal. The admission of a criminal appeal cannot be subject to payment of compensation but the Appellate Court always have the liberty after admitting an appeal against an order of conviction under section 138 of the Negotiable Instruments Act to make direction to deposit a part of the compensation amount. I further find the learned Judge has passed this order mechanically. In one hand, he recorded that the delay was condoned and in other hand he held as such the appeal dismissed. Be that as it may, it is well-settled by a series of decisions of the Hon'ble Supreme Court as well as of the different High Courts of the country that no appeal against a conviction and sentence can be dismissed without hearing on merit. Be that as it may, it is well-settled by a series of decisions of the Hon'ble Supreme Court as well as of the different High Courts of the country that no appeal against a conviction and sentence can be dismissed without hearing on merit. The learned Judge also did not bother to consider whether delay has been sufficiently explained or not. The learned Judge ought to have wait a little for decision of this Court in C.R.R. No. 4008 of 2009, where the petitioner challenged the order whereby he was directed to deposit a part of the compensation amount as a pre-condition of entertaining his application for condonation of delay. The order impugned is absolutely illegal and without jurisdiction and accordingly set aside. The matter is remitted back to the Court below and the learned Sessions Judge, Howrah is directed to proceed with the matter in accordance with law. He is directed to first dispose of the application for condonation of delay then take up the matter as regards to the question of admission and to dispose of the appeal and dispose of the appeal. Criminal Section is directed to deliver urgent photostat certified copy of this judgement to the parties, if applied for, as early as possible.