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2013 DIGILAW 252 (BOM)

Rafiq Ramjan Jamdar v. Haseen Babso Jamadar

2013-01-31

ABHAY M.THIPSAY

body2013
Judgment : Heard Mrs.Prabha Badadare, the learned counsel for the applicant. Heard Mr.Haribhau Deshinge, the learned advocate for the respondent no.1. Heard Mr.S.A.Shaikh, the learned APP for the State. 2. By consent, admitted, and taken up for final hearing forthwith. 3. The applicant had filed a complaint against the respondent no.1 herein, alleging commission of an offence punishable under Section 138 of the Negotiable Instruments Act. The learned Judicial Magistrate, First Class, Kurundwad , after holding a trial convicted the applicant of the said offence and imposed a sentence of Simple Imprisonment for six months and a fine of Rs.1,25,000/-upon him. The applicant, aggrieved by the conviction and the sentence imposed upon him, filed an appeal in the court of Sessions. The appeal was duly admitted. The substantive sentence imposed upon the applicant was suspended, pending the hearing and final disposal of the appeal. On 5.12.2012, when the said appeal was on the board of the learned Additional Sessions Judge, Jaisingpur, the applicant and his advocate remained absent. The Additional Sessions Judge observed as follows: The conduct of the appellant clearly indicates that though he is knocking the doors of justice but not attending the court proceeding. Hence I pass the following order : ORDER The appeal is hereby dismissed. 4. Aggrieved by the dismissal of the appeal, the applicant has approached this court in revision. 5. It is not in dispute that the appeal had been admitted on 18.8.2009. Once the appeal was admitted, it was not open for the learned Additional Sessions Judge to dismiss it without considering the merits of the same. The impugned order has been passed on account of the absence of the applicant and his advocate before the appellate court, and without considering the merits of the appeal. 6. The learned counsel for the respondent no.1 is not in a position to dispute the legal position that an appeal, once admitted, is necessarily required to be determined after considering the merits of the matter, and not in default of the appearance of the appellant. 7. The impugned order is not in accordance with law. The same is required to be interfered with. 8. The Revision application is allowed. 9. The impugned order is set aside. 10. The Criminal Appeal No.31 of 2009 is restored. The learned Additional Sessions Judge shall hear the same in accordance with law. 11. 7. The impugned order is not in accordance with law. The same is required to be interfered with. 8. The Revision application is allowed. 9. The impugned order is set aside. 10. The Criminal Appeal No.31 of 2009 is restored. The learned Additional Sessions Judge shall hear the same in accordance with law. 11. Parties to appear before the Appellate court on 25.2.2013. 12 The Revision Application is disposed of accordingly.