ORDER:
The petitioner/sole accused has projected the present Criminal Revision Case as against the order, dated 29.01.2011, in dismissing the appeal in C.A No. 22/2010 on the file of learned Additional Sessions Judge, Fast Track Court, Dindigul, for the absence of the petitioner/accused, when the appeal has come up for hearing on 29.01.2011
2. According to the learned counsel for the petitioner/accused, the learned Additional Sessions Judge, Fast Track Court, Dindigul, has dismissed C.A No. 22/2010 on his file on 29.01.2011, based on the reason that the petitioner/accused has not appeared before the Court and in view of the fact that the impugned order is contrary to law and weight of evidence, the same is liable to be set aside, in the interest of justice.
3. The learned counsel for the petitioner/accused cites the decision of Karnataka High Court, dated 23.03.1989, in M.D Farooq v. State of Karnataka, (Indian Kanoon - http://indiakanoon.org/doc/1168032) and submits that the instant Criminal Revision Case may be allowed in the interest of justice and the Criminal Appeal may be directed to be restored to file on the file of the first appellate court, so as to provide an opportunity to the petitioner/accused to contest the appeal on merits.
4. Heard the learned counsel appearing for the respondent/complainant on the submissions made by the learned counsel for the petitioner/accused.
5. It is not in dispute that the petitioner/accused has not appeared before the appellate court in C.A No. 22/2010 on 16.09.2010 and for dispensing with the presence of the petitioner/accused, a petition under Section 317 Cr.P.C has been filed and the same has been dismissed and a Non-Bailable Warrant has been issued and till date the same has not been executed. Also, on earlier occasions, when the Criminal Appeal has come up for hearing before the first appellate court, the petitioner/accused has not appeared on 05.10.2010 29.10.2010, 16.11.2010, 06.12.2010 and 06.01.2011 and further his counsel has also not appeared before the Court.
6. Inasmuch as numerous opportunities have been provided to the petitioner/accused and notwithstanding the same, the petitioner/accused has not appeared before the first appellate court on 29.01.2011 and finally, the first appellate court has been perforced to dismiss Crl.A No. 22/2010 for non-appearance of the petitioner/accused. Further, the first appellate court has also directed the trial court to arrest the petitioner/accused and immure him in prison.
7. In the order cited by the petitioner/accused, M.D Farooq v. State of Karnataka, (Indian Kanoon - http://indiakanoon.org/doc/1168032), in paragraph No. 6, it is mentioned as under:
“6.On consideration of the submissions made by the learned counsel on both sides, I am of the opinion that the impugned order dt.12.7.88 of the Appellate Court deserves to be set aside. In an almost identical situation, the Hon'ble Supreme Court has made the following observations in the case of Ram Naresh Yadav v. State of Bihar (AIR 1987 SC 1500): (1987 Cri L.J 1856).
“It is an admitted position that neither the appellants nor counsel for the appellants in support of the appeal challenging the order of conviction and sentence were heard. It is no doubt true that if counsel do not appear when criminal appeals are called out it would hamper the work in the court and create a serious problem for the court. And if this happens often the working of the court would become well nigh impossible. We are fully conscious of this detention of the matter but in criminal matter the convicts must be heard before their matters are decided on merits. The court can dismiss the appeal for non-prosecution and enforce discipline or refer the matter to the Bar Council with this end in view. But the matter can be disposed of on merits only after hearing the appellant or his counsel. The court might as well appoint a counsel at State cost to argue on behalf of the appellants. Since the order of conviction and sentence in the present matter has been confirmed without hearing either the appellants or counsel for the appellants, the order must be set aside and the matter must be sent back to the High Court for passing an appropriate order in accordance with law after hearing the appellants or their counsel and on their failure to engage counsel, after hearing counsel appointed by the Court to argue on their behalf. ….”
8. Only in the light of the aforesaid observations, the order passed by the appellate Court on 12.07.1988 has been set aside by the Karnataka High Court and the matter has been remitted back to to the appellate court for disposal of the appeal on merits, in accordance with law. But, in the present case on hand, the petitioner/accused is in the habit of not appearing before the Court in a habitual fashion, obviously for five hearings, namely 05.10.2010, 29.10.2010, 16.11.2010, 06.12.2010 and 06.01.2011 and on an earlier occasion, i.e on 16.09.2010, he has not appeared and even the petition under Section 317 Cr.P.C filed on his behalf before the first appellate court to dispense with his presence on 16.09.2010 has been dismissed. It appears that the petitioner/accused is not diligent enough in prosecuting the case proceedings before the first appellate court.
9. At this juncture, the learned counsel for the petitioner/accused submits that the petitioner has got a good and reasonable case in Crl.A No. 22/2010 on the file of the first appellate court and, therefore, prays for allowing the criminal revision case, so that an opportunity may be provided to the petitioner to project his point of view in the case in Crl.A No. 22/2010 in threadbare.
10. Be that as it may, on consideration of the peculiar facts and circumstances of the present case, in an integral fashion and also in view of discussion mentioned supra, this Court, to secure the ends of justice, allows the present Criminal Revision Case, by providing an opportunity to the petitioner/accused to contest the main appeal, viz. Crl.A No. 22/2010, on merits, of course, by directing him to deposit a sum of Rs. 2,500/- (Rupees two thousand five hundred only) to the credit of C.A No. 22/2010 before the first appellate court, within a period of four weeks from the date of receipt of a copy of this order. On such deposit being made by the petitioner/accused, the first appellate court is directed to restore the C.A No. 22/2010 to its file. In such an event, the Non-Bailable Warrant pending against the petitioner/appellate shall be recalled. It is also open to the respondent/complainant to receive the said sum of Rs. 2,500/-, to prevent aberration of justice, by filing necessary payment-out application, in the manner known to law.
11. Since the cheque transaction is dated 23.04.2004 and nearly eight years have elapsed and also bearing in mind another important fact that the criminal appeal is of the year 2010, the first appellate court is directed to dispose of the said Appeal within three months from the date of restoration of the Appeal to its file. In this regard, the Criminal Revision Petitioner/accused and the respondent/complaint are directed to lend a helping hand and to offer their unstinted cooperation to the completion of the appeal proceedings, in a complete and comprehensive fashion.
12. With the above direction and observation, the criminal revision case stands disposed of.
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