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2016 DIGILAW 1269 (ORI)

Kamal Lochan Sha v. State of Orissa

2016-12-21

S.K.SAHOO

body2016
JUDGMENT : S.K. Sahoo, J. 1. The petitioner has challenged the order dated 19.04.2016 passed by the learned Sessions Judge, Keonjhar in Criminal Appeal No. 52 of 2012 in rejecting the appeal memo in the absence of the appellant as no steps were taken in spite of the earlier direction. 2. The petitioner faced trial in the Court of learned J.M.F.C., Anandapur in I.C.C. Case No. 60 of 2010/T.C. No. 174 of 2011 for offence punishable under section 138 of the N.I. Act and vide impugned judgment and order dated 27.08.2012, the petitioner was found guilty of the offence charged and sentenced to undergo simple imprisonment for one year and to pay a compensation of Rs.2,10,000/- (two lakh ten thousands) only to the complainant within a month failing which step was directed to be taken for realization of the said amount. 3. The petitioner preferred an appeal in the Court of learned Sessions Judge, Keonjhar which was registered as Criminal Appeal No. 52 of 2012. It appears from the order sheet filed by the learned counsel for the petitioner that vide order No.2 dated 13.09.2012, the learned counsel for the petitioner was directed by the learned Appellate Court to deposit 10% of the compensation amount where after the case would be taken up for admission. The order sheet further revealed that time was taken by the petitioner on a number of occasions to comply the order dated 13.09.2012 and ultimately vide impugned order dated 09.04.2016, the appeal memo was rejected on the ground that the petitioner was absent on repeated calls and no steps were taken in spite of earlier direction. 4. Learned counsel for the petitioner contended that since it is a statutory appeal and at present the petitioner is ready and willing to deposit 10% of the compensation amount as was directed vide order dated 13.09.2012, necessary direction may be given to the Appellate Court after setting aside the impugned order dated 19.04.2016 to take up the appeal for admission and decide it on merit. 5. In case of Dillip S. Dahanukar –Vrs.-Kotak Mahindra Co.Ltd. reported in (2007) 37 Orissa Criminal Reports (SC) 395, it is held that in a case under section 138 of the Negotiable Instruments Act, sub-section (2) of section 357 of Cr.P.C. would be attracted even when the appellant was directed to pay compensation. 5. In case of Dillip S. Dahanukar –Vrs.-Kotak Mahindra Co.Ltd. reported in (2007) 37 Orissa Criminal Reports (SC) 395, it is held that in a case under section 138 of the Negotiable Instruments Act, sub-section (2) of section 357 of Cr.P.C. would be attracted even when the appellant was directed to pay compensation. The Appellate Court, however, while suspending the sentence, was entitled to put on terms. However, no such terms could be put as a condition precedent for entertaining the appeal which is a constitutional and statutory right. 6. The learned Sessions Judge, Keonjhar directed the learned counsel for the appellant vide order dated 13.09.2012 to deposit 10% of the compensation amount as a condition precedent for taking up the appeal for admission which should not have been passed in view of the decision in the case of Dillip S. Dahanukar (supra). Right of appeal, can neither be interfered with or impaired, not it can be subjected to any condition. An Appellate Court can admit the appeal in such a case and after granting bail to the appellant, can direct the appellant to deposit a reasonable amount out of the compensation amount awarded by the learned Trial Court within a stipulated period. Appropriate order can also be passed by the Appellate Court to stay realization of the balance of the compensation amount pending disposal of the appeal in the event of deposit of such reasonable amount. If the appellant fails to deposit the reasonable amount within stipulated period of time, the Appellate Court can take appropriate steps in accordance with law against the appellant but that cannot be a ground to dismiss the statutory appeal as it would affect the fundamental right of an accused enshrined under Article 21 of the Constitution of India. 7. In view of the submission made by the learned counsel for the petitioner, it is directed that if the petitioner deposits 10% of the compensation amount as awarded by the learned J.M.F.C., Anandapur in I.C.C. Case No. 60 of 2010/T.C. No. 174 of 2011 vide impugned judgment and order dated 27.08.2012 on or before 7th January 2017 before the learned Appellate Court, the impugned order dated 19.04.2016 passed in Criminal Appeal No.52 of 2012 shall be recalled and the appeal shall be restored to file and taken up for admission by the learned Appellate Court and disposed of on merits in accordance with law. 8. With the aforesaid observations, the CRLREV is disposed of.