The Appellate Court must give a hearing to the appellant or his counsel before disposing of the appeal on merits, and a criminal appeal cannot be dismissed for non-payment of fine.

JUDGMENT :

Vibha Kankanwadi, J.

1. Present criminal revision application has been filed by the original accused challenging order dated 15-07-2019 passed below Exhibit-01 in Criminal Appeal No.78 of 2018 by the learned Additional Sessions Judge-2, Jalna for dismissal of his appeal in default.

2. The facts giving rise to the revision are that the present applicant-original accused faced trial in S.C.C. No.1501 of 2016 before the learned Judicial Magistrate First Class, Jalna for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. He was held guilty of committing the said offence and has been sentenced to suffer simple imprisonment for one month and to pay fine of Rs.6,58,000/- and in default to suffer simple imprisonment for one month by order dated 17-07-2018. The said judgment and conviction was challenged by the present applicant in Criminal Appeal No.78 of 2018 which was then pending before the learned Additional Sessions Judge-2, Jalna. By order dated 04-02-2019, the sentence was suspended subject to deposit of sum of Rs.1,31,600/- which was 20% of the fine amount awarded by the learned Judicial Magistrate First Class, Jalna. It appears that thereafter within the time limit, that was prescribed for payment of fine amount and furnishing bail as directed by the trial Court as well as the fact that the appellant was absent since long, the learned Additional Sessions Judge-2, Jalna dismissed the appeal in default for want of prosecution on 15-07-2019 and the said order is challenged in this criminal revision application.

3. Heard learned Advocate Mr. S. S. Bora for the applicant and learned Advocate Mr. S. J. Salunke for respondent No.1. It has been submitted on behalf of the applicant that the learned Additional Sessions Judge erred in dismissing the appeal in default when once he had admitted the appeal. By placing reliance on the decision in Bani Singh and ors. Vs State of U.P., (1996) AIR SC 2439, it was submitted that the learned Appellate Court ought to have proceeded to decide the appeal, as he could not have disposed of the appeal in default.

4. Per contra, learned Advocate appearing for the original complainant submitted that the conduct of the applicant is required to be considered. A conditional order was passed while suspending the sentence. Accused was directed to deposit 20% of the fine amount within a period of 15 days and he was also directed to furnish bail with surety. He has not done both the acts. He had not taken any steps so that the appeal could proceed further and therefore, the learned Additional Sessions Judge had rightly dismissed the appeal in default.

5. It is required to be noted that by order dated 09-08-2019 passed by this Court, the present applicant was directed to deposit amount of Rs.1,31,600/- before the Court of Judicial Magistrate First Class within a period of two weeks. The communication has been received that the applicant has deposited that amount.

6. Now, turning to the small point involved in the matter as to whether the Appellate Court could have dismissed the appeal in default once the appeal is admitted. The point is not res integra and it has been held in catena of judgments which have been again summarized in the aforesaid decision of Bani Singh (Supra). After taking note of the decisions in Ram Naresh Yadav and ors. Vs. State of Bihar, (1987) AIR SC 1500 and Shyam Deo Pandey and ors. Vs. State of Bihar, (1971) CriLJ 1177, it was noticed that there were conflicting views in the same. The matter in Bani Singh's case (Supra) was placed before the larger Bench. The larger Bench has then laid down the law, which reads as under :-

"15. Secondly, the law expects the Appellate Court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if he is present before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place