((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLICATION NO.414 OF 2008 M/s.Teke Cold Storage Applicant versus The State of Maharashtra & anr. Respondents Anand J. Patil i/by Shekhar Ingawale for applicant. H.J.Dedhi, APP for State. Vinod Y. Jadhav, adv. for respondent no.2. CORAM : A.S.OKA, J. DATE : 28th April 2009 PC : 1. Heard learned counsel appearing for the petitioner and learned counsel for the second respondent. Rule. Forthwith taken-up for final disposal. 2. The applicant was arraigned as an accused in a complaint filed by the second respondent complaining commission of offence under section 138 of the Negotiable Instruments Act, 1881. The applicant was convicted by the learned Magistrate. Against the order of conviction the applicant preferred an appeal before the Sessions Court. By the impugned judgement and ((-2-)) order the appeal has been dismissed. One of the submissions made is that the appeal has been dismissed without hearing the revision applicant. The submission is that the appeal could not have been dismissed as the same was against an order of conviction. The learned counsel for the second respondent supported the impugned order by pointing out that the applicant and his advocate were absent and after considering the merits of the case the learned Sessions Judge has dismissed the appeal. The learned counsel for the second respondent pointed out that the applicant had committed breach of the order dated 16th November 2007 passed by the Sessions Court pending the appeal. 3. I have considered the submissions. The order dated 16th November 2007 was passed on an application made by the applicant for suspension of substantive sentence. Breach of that order is no ground to dismiss the substantive appeal against conviction. In the impugned order the learned Judge has noted that neither the applicant nor his advocate were present till 01.30 p.m. on the date on which the appeal was fixed for hearing and therefore ((-3-)) he proceeded to dismiss the appeal. 4. A perusal of the judgement of the Appellate Court shows that the learned Judge has not considered the merits of the case. The learned Judge has not referred to the evidence on record before the learned Magistrate. Even assuming that the learned Judge was entitled to decide the appeal in absence of the revision applicant, it was the duty of the Appellate Court to consider the merits of the appeal and thereafter record the findings. 5. In the circumstances, the impugned order deserves to be quashed and set aside with a direction to the Sessions Court to decide the appeal afresh in accordance with law. As far as interim relief pending appeal is concerned, it will be open for the revision applicant to file appropriate application before the Sessions Court. If such an application is made, the Sessions Court is bound to consider the effect of non compliance with the earlier order dated 16th November 2007. 6. Hence, I pass following order :- ((-4-)) (a) The impugned judgement and order dated 20th June 2008 is quashed and set aside and Criminal Appeal No.188 of 2007 is restored to the file of Sessions Court; (b) The parties are directed to appear before the learned Sessions Judge, Sangli on 22nd June 2009 at 11.00 a.m.. The learned Judge may himself take-up the appeal for hearing or may assign it to some other Court; (c) The applicant is directed to co-operate with the Sessions Court for expeditious disposal of the appeal; (d) The appeal shall be decided as expeditiously as possible and in any event on or before 16th October 2009; (e) Subject to the observations made above, it will be open for the applicant to apply for appropriate interim relief before the Sessions court; (f) The revision application is partly allowed in above terms; ((-5-)) (g) All contentions of parties on merits are kept open. (A.S.OKA, J.)