* 1 * IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO. 300 OF 2009 W I T H CRIMINAL APPLICATION NO. 280 OF 2009 Pandurang Narayan Sawant ...............Petitioner/Orig.Accused V/S. The State of Maharashtra .............Respondent ---------- Mr.Desai i/by. Mrs. P.V. Badadare, advocate for applicant. Mrs. S.V. Gajare, APP for respondent-State. CORAM :- S.C. DHARMADHIKARI, J. DATED :- 21 st JANUARY, 2010. P.C. :- 1. This Revision Application is by the original accused-appellant in Criminal Appeal No. 206 of 2007. 2. C.C. No.10/P/96 on the file of the learned Additional Chief Metropolitan Magistrate, 3rd court, Esplanade Mumbai resulted in conviction of the petitioner-accused vide order dated 20th March, 2007. The conviction was for offence punishable under Section 409, 466, 467, 471, 477A of IPC. On the first count, he was sentenced to suffer rigorous imprisonment for 4 years and to pay fine of Rs. 1,00,000/- or in default to suffer further rigorous imprisonment for 1 year. On second count, he came to be sentenced to * 2 * suffer rigorous imprisonment for 2 years and to pay fine of Rs. 50,000/-, in default to suffer further rigorous imprisonment for 6 months. 3. The substantive sentences were to run concurrently. 4. Aggrieved by this judgment and order of conviction and sentence, the petitioner accused preferred criminal appeal to the court of Sessions at Greater Bombay. 5. With the assistance of Mr. Desai, appearing on behalf of the applicant- accused and the learned APP for State, I have perused the judgment of the lower appellate court. In a judgment running into 14 pages, the learned judge has discussed upto page-8 the plea of want of sanction under Section 197 CrPC. In the rest of the five pages, he has discussed the entire oral and documentary evidence. 6. Mr. Desai, submits that, several vital points which were raised in the memo of appeal and argued during the course of the arguments have not been considered. A serious grievance raised is that the lower appellate court failed in its duty as an appellate court to asssess the evidence on record. 7. The next grievance made is that there is no reference to the cross- examination of the witness examined by the prosecution at all. 8. From the reading of the lower appellate court s judgment, it is apparent ’ that there is some substance in the complaint of Mr. Desai. I have carefully perused that judgment, considering the fact that criminal case was of the * 3 * year 1996, it was decided by the Magistrate in the year 2007 and the appeal has been disposed off in 2009, further incident is nearly 22 years old. However, in the entire appellate court s judgment, there is not even a ’ reference to the cross-examination of any of the witnesses, leave alone a finding that the testimony of the prosecution witnesses has not been shakened in any manner. Further, there is no conclusion that they have withstood the cross-examination or nothing has been elicited therefrom, so as to disbelieve them or discredit their testimony. Such conclusions are not mere rituals, but must be reached after an assessment of oral and documentary evidence on record. This is an exercise expected of an appellate court, which is dealing with an appeal against a judgment of conviction and sentence rendered in a criminal trial. The right of appeal given to an accused is an valuable right. While dealing with appeals, it is expected of the lower appellate court to discuss the oral evidence in depth, consider the documents and also consider the decisions brought to it s’ notice. A thorough discussion is expected or else the right would be defeated and frustrated. 9. The judgment of the lower appellate court is not satisfactory at all. There is substance in the criticism of Mr. Desai which is referred to by me herein- above. In such circumstances, the course open was to either admit this Revision Application or to set aside the judgment of the lower appellate * 4 * court and restore the appeal to its file for disposal afresh in accordance with law. 10. In my view, considering that the charge is of misappropriation and defalcation of public funds by a person working as a Cashier in the Metropolitan Magistrate s court at Bombay at the relevant time, so also, ’ considering the age of the petitioner-accused, interest of justice would be served, if at this stage itself, this Revision Application is disposed off by setting aside the judgment of the lower appellate court and restoring the Criminal Appeal to its file. Accordingly the following order : O R D E R 1. The judgment and order passed by the City Civil and Sessions Court, Bombay in Criminal Appeal No. 206 of 2007 is quashed and set aside. 2. Criminal Appeal No. 206 of 2007 is restored to its file. The said appeal shall be dealt with on merits afresh without being influenced by the observations in the earlier judgment. 3. Considering that the matter is very old, Criminal Appeal No. 206 of 2007 be decided expeditiously. 4. The Revision Application is allowed in the aforesaid terms. [S.C. DHARMADHIKARI, J]