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2020 (12) TMI 1001 - HC - Indian LawsMaintainability of appeal - appeal was dismissed for not paying process fee - whether this is legal and proper or not - HELD THAT - The First Appellate Court had admitted the appeal for hearing. In such cases, Section 385 of Cr.P.C., requires that the appeal shall be disposed of by notifying the date of hearing. Since in this case the appellant was the convicted accused, if his advocate failed to appear, the trial Court should have secured the presence of the appellant by following due process of law and proceeded with the appeal. Therefore, the impugned order of dismissal of the appeal is contrary to Section 385 of Cr.P.C., and unsustainable. Learned counsel for the complainant submits that the complainant is fighting a litigation since 2012. Therefore, if at all the matter is to be remanded, the complainant may be permitted to withdraw the amount deposited by the accused and time may be fixed for disposal of the appeal.The matter is remanded to the First Appellate Court for fresh consideration - Appeal allowed by way of remand.
Issues Involved:
- Whether the impugned order dismissing the appeal for not paying process fee suffers incorrectness, illegality, impropriety? Analysis: 1. The respondent filed a complaint against the petitioners under Section 138 of the Negotiable Instruments Act. The accused denied guilt and contended that the complainant misused a blank cheque issued by them. The trial court rejected their defense, convicted them under Section 138, and imposed a fine of ?2,75,000, with ?2,70,000 awarded to the complainant as compensation. 2. The accused appealed the trial court's decision before the I Additional Sessions Judge, Mysuru. The notice issued to the respondent was returned, leading to multiple adjournments. Ultimately, the appeal was dismissed for non-prosecution as the accused's counsel did not appear on the specified date. 3. The accused challenged the dismissal, claiming they had attempted to serve notice at the address provided by the complainant. The counsel argued that the dismissal without giving an opportunity to correct the address was unfair and requested a remand for a fair hearing. 4. The respondent contended that the accused deliberately delayed proceedings and that the complainant still resided at the same address. The First Appellate Court's records confirmed the address provided by the accused matched the complainant's address, but the notice was returned as undeliverable. 5. The High Court found the dismissal of the appeal for non-prosecution contrary to Section 385 of the Cr.P.C., which mandates securing the appellant's presence if the advocate fails to appear. The Court set aside the impugned order, remanding the matter to the First Appellate Court for fresh consideration. 6. To expedite the process, both parties were directed to appear before the First Appellate Court, either virtually or physically, on a specified date. The First Appellate Court was instructed to dispose of the appeal within three months from the appearance of the parties. The complainant was permitted to withdraw the amount deposited by the accused, subject to providing appropriate security to the Trial Court. 7. The Sessions Court/Appellate Court Records and Trial Court Records were to be promptly returned to the First Appellate Court.
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