mpt IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL REVISION APPLN NO.606 of 2007 Balasaheb Vilasrao Kalgutgee .. Applicant versus State of Maharashtra & Anr. .. Respondents ... Mr.A.R.Pandey for the applicant. Mr.K.V. Saste APP for the State. CORAM : D.G.KARNIK, J DATED : 18th January 2008 P.C.: 1. Heard learned counsel for the revision applicant and learned APP for respondent no.1. None present for respondent no.2 though Mr.Borade had appeared for him previously and waived service. 2. This revision application is directed against the judgement and order dated 31st October 2007 passed by Addl. Sessions Judge, Sangli dismissing the Criminal Appeal no.154 of 2007 on the ground of non deposit of money as per the order dated 10th October 2007. 3. The applicant was tried for an offence punishable u/s.138 of the Negotiable Instruments Act, 1881 by the Judicial Magistrate First Class, Miraj. By his judgement and order dated 11th September 2007 held that the applicant was guilty of the offence charged and convicted the applicant for the offence and sentenced him to suffer Rigorous Imprisonment for one year and also directed the applicant to pay compensation of Rs.4,15,000/- to the complainant (respondent no.2 herein) and in default to suffer RI for three months. 4. Aggrieved by the order of conviction and sentence, the applicant filed an appeal bearing Criminal Appeal 154 of 2007 in the Court of Sessions at Sangli. By a separate application, the applicant also applied for suspension of the sentence and/or release him on bail till the decision of an appeal. 5. The learned Sessions Judge after hearing the applicant admitted the appeal for final hearing. On the application for suspension of sentence, the learned Sessions Judge directed that the substantive sentence shall be suspended till the final disposal of the appeal. The learned Sessions Judge however directed the applicant to deposit in the court Rs.Three lakhs in 12 equal monthly instalments each of Rs.25,000/-, the first instalment to be deposited on or before 31st October 2007 and each subsequent instalment to be deposited on the last date of each month. The applicant did not deposit the first instalment of Rs.25,000/- on or before 31st October 2007 as directed by the learned Sessions Judge while suspending the sentence. In view of this default, the learned Additional Sessions Judge to whom the matter was assigned, by an order dated 31st October 2007 dismissed the appeal by passing the following order:- "Though order passed below Exhibit 5 on 10.10.2007 and thereby directed appellant (original accused) to deposit first instalment of Rs.25,000/- on or before 31.10.2007, still appellant (accused) has not deposited the amount. As such, the order passed on 10.10.2007 is not complied by the appellant. Hence, appeal is dismissed. . Inform the lower court accordingly." 6. Section 384 of the Code of Criminal Procedure (for short ’the Code’) enables the appellate court to dismiss the appeal summarily if upon examining the petition of appeal and the judgement impugned the appellate court considers that there is no sufficient ground for interfering. This power, ofcourse is circumscribed by the proviso to section 384. The power under section 384 of the Code of Criminal Procedure, in the instant case was not exercised because the appeal was admitted by the learned Sessions Judge, before passing the order of suspension of the sentence. The procedure for hearing of the appeal which is not dismissed summarily under section 384 is prescribed under section 385 of the Code. Section 385 does not confer any power on the Sessions Court for summary dismissal of an appeal. It also does not contemplate dismissal of an appeal for breach of an order including breach of any condition for grant of a bail or suspension of sentence. The order dated 10th October 2007 passed by the learned Sessions Judge, below Exhibit-5 in appeal shows that firstly the learned Judge suspended the sentence imposed and secondly he directed deposit of Rs.three lakhs in the court in instalments. From the order it does not appear that deposit of Rs.Three lakhs by instalments in the court was a condition for suspension of the sentence. It was simply a direction with no consequence provided for its breach. Assuming, however, that deposit of Rs.3,00,000/- in the court was a condition for suspension of the sentence, for breach of it the Addl. Sessions Judge could, after giving an opportunity to the applicant, at the most have vacated or varied the order of suspension of sentence. He could have directed the applicant to be taken into custody after revoking the order of suspension. He had no power to dismiss the appeal without hearing on the ground of non deposit of Rs.3,00,000/- assuming it to be a condition for suspension of the sentence. In the circumstances, the learned Addl. Sessions Judge clearly erred in dismissing the appeal without hearing for non payment of the instalment of Rs.25,000/- on 31st October 2007. 7. For these reasons, the impugned order cannot stand and is hereby required to be set aside. Accordingly, revision is allowed and impugned order is set aside. Appeal no.154 of 2007 pending in the court of Sessions Judge, Sangli is restored to the file for hearing on merits. It is clarified that the learned Sessions Judge may, after giving an opportunity of hearing to the applicant, pass such other order including an order of variation of suspension of sentence for the breach of the order of deposit. 8. Revision Application is allowed. Rule is made absolute to the extent indicated above. (D.G. KARNIK, J)