IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Misc. No. 213 of 2009 and Crl. Revision No. 6 of 2009 Date of decision: March 17, 2009 Balkar Singh ….. Petitioner Versus Tarsem Singh ….. Respondent Present: Mr. Ravi Malhotra, Advocate for the petitioner. Mr. S.K. Paruthi, Advocate for the respondent. *** S.S. SARON, J. This revision petition has been filed by the petitioner against the order dated 29.5.2008, whereby the appeal of the petitioner against the order dated 15.1.2007 passed by the learned Judicial Magistrate Ist Class, Jalandhar convicting and sentencing him for the offence under Section 138 of the Negotiable Instruments Act, 1881 (“Act” – for short) has been dismissed in terms of Section 386 of the Code of Criminal Procedure (“CrPC” – for short). Along with the revision petition, an application has been filed under Section 5 of the Limitation Act, 1963 seeking condonation of 132 days delay in filing the revision petition. Notice of Crl. Misc. application seeking condonation of delay was issued on 07.1.2009. Sh. S.K. Paruthi, Advocate for Mr. G.S. Sandhawalia, Advocate has put in appearance for the respondent. Notice of motion in the Crl. Revision petition is also issued which is accepted by Mr. S.K. Paruthi, Advocate for the respondent. Crl. Misc. No. 213 of 2009 and [2] Crl. Revision No. 6 of 2009 Heard counsel for the parties on the application seeking condonation of delay as well as on the Crl. Revision petition. As regards the application seeking condonation of delay, it may be noticed that the petitioner was not present before the learned Additional Sessions Judge when his appeal was taken up. Neither his counsel was present. Accordingly, the learned Additional Sessions Judge dismissed his appeal in terms of Section 386 CrPC. A copy of the order was sent to the learned Trial Magistrate to issue warrants of arrest of the petitioner and send him to jail to undergo the sentence awarded to him. The petitioner was arrested and sent to judicial lock up on 7.8.2008. Therefore, the petitioner could not apply for copy of the order dated 29.5.2008 passed by the learned Additional Sessions Judge. In this manner, delay has occurred of 132 days in filing the revision petition. For the reasons stated, there are sufficient grounds to condone the delay in filing the revision petition. Accordingly, the Crl. Misc. application seeking condonation of 132 days delay in filing the revision petition is allowed. As regards the order dated 29.5.2007, it may be noticed that the same has been passed in terms of Section 386 CrPC. The petitioner did not put his appearance before the learned Lower Appellate Court, neither did his counsel appear. Therefore, the appellate Court dismissed the appeal for want of prosecution in the absence of the petitioner. In fact the learned Lower Appellate Court was liable to hear the appeal and decide it on merit rather than dismissing it on mere technicalities of non-appearance of the petitioner. In Bani Singh and others v. State of UP, (1996) 4 SCC 720 it was observed that the plain language of Section 385 makes it clear that if the appellate court does not consider the appeal fit for summary dismissal, it ‘must’ call for the record and Section 386 mandates that after the record Crl. Misc. No. 213 of 2009 and [3] Crl. Revision No. 6 of 2009 is received, the appellate court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Section 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the appellate court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross- checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non-prosecution but only contemplates disposal on merits after perusal of the record. In the circumstances, the criminal revision petition is allowed and the order dated 29.5.2008 passed by the learned Additional Sessions Judge, Jalandhar is set aside. The case is remitted to the learned Additional Sessions Judge, Jalandhar for hearing the matter on merit. The parties shall put in appearance before the learned Additional Sessions Judge on 20.4.2009. Meanwhile, the sentence of imprisonment of the petitioner shall during the pendency of the appeal before the learned Additional Sessions Judge remain suspended subject to his furnishing personal bond and surety to the satisfaction of the learned Additional Sessions Judge. (S.S. SARON) JUDGE March 17, 2009 amit