IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL REVISION APPLICATION NO. 27 OF 2010 NARAYAN P. NAIK ... Petitioner Versus THE BICHOLIM URBAN CO-OPERAATIVE BANK LTD. ... Respondent Mr. Jose F. Melo, Advocate for the Petitioner. Coram:- N. A. BRITTO, J. Date:- 27th July, 2010 P.C.: Heard. 2. The petitioner, herein is accused, who had filed an appeal against his conviction under Section 138 of the Negotiable Instruments Act, 1881, before the Court of Sessions, Panaji. 3. The said appeal came to be dismissed by order dated 8/06/2010. The said order dated 8/06/2010 reads as follows; "Appellant absent. Surety not furnished. Appeal is dismissed." 4. The respondent/complainant appears not to have been served at the time when the said order of dismissal was passed. In any event, for the order to be passed in this revision, notice to the respondent/complainant is dispensed with. 5. Counsel on behalf of the petitioner has placed reliance on a three Judge judgment of the Apex Court in the case of Bani Singh and Others V/s. State of U.P. (AIR 1996 SC 2439) and has submitted that the appeal filed by the petitioner could not have been dismissed without hearing the appellant. The said three Judge judgment of the Apex Court has been followed in another decision of the Apex Court in the case of Madan Lal Kapoor V/s. Rajiv Thapar & Ors. (2007 AIR SCW 5717) wherein it is stated that in Bani Singh and Others V/s. State of U.P. (supra), the Apex Court has over ruled the earlier view in Ram Naresh Yadav & Ors. V/s. State of Bihar (AIR 1987 SC 1500) and has observed as follows; "Thus in Bani Singh and Ors. V/s. State of U.P. (1996 (4) SCC 720), a three Judge Bench of this Court held that a criminal appeal should not be dismissed in default but should be decided on merits. If despite notice neither the appellant nor his counsel present, the Court should decide the appeal on merits. If the appellant is in jail the Court can appoint a lawyer at State expense to assist it. This would equally apply to the respondent." 6. In the light of that, this revision is bound to succeed. Consequently, the impugned order dated 8/06/2010 is hereby set aside and the learned Assistant Sessions Judge is hereby directed to dispose the appeal in accordance with law after hearing both the parties. Parties to appear before the learned Assistant Sessions Judge on 13/08/2010 at 10.00 a.m. N. A. BRITTO, J. NH