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2010 DIGILAW 585 (CAL)

Raghubir Lahiri v. Uttam Bhattacharjee

2010-05-21

ASHIM KUMAR ROY

body2010
JUDGMENT 1. THE subject matter of challenge in this criminal revision is an ex parte order of dismissal of a criminal appeal against an order of conviction under Section 138 of the Negotiable Instruments Act. 2. HEARD the Learned Counsels appearing on behalf of the parties. Perused the impugned order and other materials on record. It appears from the impugned order on the date fixed for hearing of the appeal neither the appellant nor his lawyer was present in Court. When the Appellate Court took up the appeal for hearing and dismissed the same on the following findings; "I have perused the impugned order of the ld. Magistrate and on perusal of the said impugned order I am of the view that the Ld. Court below rightly convicted the appellant-accused on perusal of evidence papers and other materials on record. As there is no ambiguity, or discrepancy or irregularity in the judgement passed by the Ld. Trial Court, I am of the view that this Court has no scope to interfere with the judgement of Ld. Trial Court. Hence, the judgement and order of conviction passed by the Ld. Trial Court is confirmed. Hence, it is Ordered That the judgement dt. 13.2.09 passed by the ld. Judicial Magistrate 1st Court, Jalpaiguri, is affirmed and the appeal is dismissed on merit. The appellant-accused will appear before the ld. Trial Court within 7 days of this order in order to serve out the imprisonment and the compensation as awarded by the Ld. Trial Court." 3. IT is no more res integra that a criminal appeal preferred against an order of conviction by an accused cannot be disposed of without giving opportunity of hearing to him. Undoubtedly, no Court can remain silent and suppose to sit idle and keep hearing of appeal pending for days together, when the lawyer of the appellant choose not to attend Court. In such a case the proper course would be to issue notice to the appellant and if after service of notice the appellant did not take any step, then in that case to engage a competent lawyer to defend the appellant at the cost of the State. In such a case the proper course would be to issue notice to the appellant and if after service of notice the appellant did not take any step, then in that case to engage a competent lawyer to defend the appellant at the cost of the State. Moreover, no criminal appeal can be dismissed without discussing the merits of the case and just by referring the facts and the findings of the Trial Court and giving a decision that such judgement does not suffers from any illegality or infirmity and there is no scope to interfere with the same. The duty of the Appellate Court is coextensive with that of the Trial Court in the matter of disposal of a criminal appeal. The Appellate Court by itself has to assess, appraise, appreciate the evidence and then to determine the disputed issues. IT has to apply its mind to the evidence on record and come to an independent conclusion as to whether such evidence can be relied and if so, whether the same can said to have proved the guilt of the accused beyond all reasonable doubts. Now, having perusal of the impugned judgement I have no doubt that the approach of the Appellate Court was wholly erroneous and not in accordance with law, thus cannot be sustained. Accordingly, the order of dismissal of the appeal stands set aside and the appeal stands restored to its file. The petitioner is directed to appear before the Trial Court within four weeks from this date with prior notice to the complainant and the Appellate Court is directed to dispose of the appeal within six weeks from the date of communication of this order after giving reasonable opportunity of hearing to the parties and in accordance with law. I make it clear, in the event on the date so fixed for hearing of the appeal, if once again the appellant or his lawyer is found to be absent in Court then in that case the Appellate Court shall engage a lawyer from the State Panel to defend the appellant at the cost of the State and then dispose of the appeal in accordance with law without giving any further opportunity to the petitioner. In terms of the order of disposal of the main criminal revision, the application for extension of interim order being CRAN No. 225 of 2010 also stands disposed of. In terms of the order of disposal of the main criminal revision, the application for extension of interim order being CRAN No. 225 of 2010 also stands disposed of. Criminal Section is directed to deliver urgent Photostat certified copy of this Judgement to the parties, if applied for, as early as possible.