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2016 DIGILAW 1458 (HP)

Sardar Singh Kapoor v. Ranjit Singh

2016-07-21

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. In a complaint filed by respondent No. 1 under Sections 138 and 142 of the Negotiable Instruments Act, 1881, learned Judicial Magistrate, 1st Class, Court No. II, Shimla in Complaint No. 145-3 of 2006 vide its judgment dated 02.04.2009, convicted the accused therein, i.e. the present petitioner and sentenced him to suffer simple imprisonment for three months for the commission of offence punishable under Section 138 of the Negotiable Instruments Act, 1881 and to pay compensation in the sum of Rs. 27,000/-. 2. Feeling aggrieved by the said judgment, accused filed an appeal. During the pendency of the said appeal on 23rd June, 2009, learned counsel appearing for the appellant therein stated that his client will pay the amount of Rs. 27,000/- to the respondent/complainant in the Court on the next date of hearing, failing which, the appeal be dismissed on that date. Apparently, the said statement was not honoured and no payment was made to the respondent/claimant. In this view of the matter, learned Appellate Court on 14th July, 2009 dismissed the appeal by holding that as no payment was made in terms of the statement made on 23rd June, 2009 and the appellant had also not appeared in the Court to honour his commitment, the appeal was being dismissed and the findings returned by learned lower Court were being affirmed. 3. Feeling aggrieved by the said judgment passed by the learned Appellate Court, the accused/petitioner has filed the present revision petition. 4. I have heard the learned counsel for the parties and also gone through the records of the case. 5. In my considered view, the judgment passed by the learned Appellate Court on the face of it is perverse. Not only this, there is a jurisdictional error committed by the learned Appellate Court by dismissing the appeal simply on the ground that the appellant therein had not made payment as was agreed to be made as per the statement made by the learned counsel on 23rd June, 2009. 6. In my considered view, learned Appellate Court was duty bound to adjudicate the appeal on merit de hors the fact whether appellant had paid an amount of Rs. 27,000/- to the respondent/claimant or not as per the statement of his counsel dated 23rd June, 2009. 6. In my considered view, learned Appellate Court was duty bound to adjudicate the appeal on merit de hors the fact whether appellant had paid an amount of Rs. 27,000/- to the respondent/claimant or not as per the statement of his counsel dated 23rd June, 2009. Learned Appellate Court could not have dismissed the appeal on the ground on which the same stands dismissed. In this view of the matter, the revision petition is allowed and the judgment/order passed by the learned Appellate Court dated 14.07.2009 is set aside and the case is remanded back to learned Appellate Court with a direction that the same be decided on merit. 7. At this stage, it has been pointed out by learned counsel appearing for respondent No. 1 that the matter in appeal was decided by the Court of learned Additional Sessions Judge, Fast Track Court, Shimla, which Courts are now no more in existence. In this view of the matter, learned Sessions Judge, Shimla is directed to either adjudicate the matter himself or assign the matter to an appropriate Appellate Court. For the said purpose, the parties are directed to put in appearance before the learned Sessions Judge on 29th July, 2016. 8. Keeping in view the fact that the complaint was filed as far back as in the year, 2006, it is further directed that the appeal shall be decided on or before 30th August, 2016. Registry to send back the records forthwith. Petition stands disposed of. No order as to costs.