Shwetha Kiran vs Pooja Yadav

H.P. Sandesh, J

Though this petition listed today for admission, with the consent of both the Counsel, the matter is taken up for final disposal.

This revision petition is filed under Section 397 read with Section 401 of Cr.P.C., praying to set aside the order passed in Crl.A.No.248/2019 dated 01.02.2020 by the II Additional District and Sessions judge, Mysuru and the judgment and conviction order in C.C.No.1439/2015 dated 05.08.2019 on the file of IV Additional Civil Judge & JMFC., at Mysuru and sought for the relief to restore the Crl.A.No.248/2019 with a direction to consider the appeal on merits by giving an opportunity for arguments of the petitioner and grant any other relief as deems fit in the facts and circumstances of the case.

Having heard the respective counsel and also on perusal of the material available on record, the Appellate Court suspended the sentence subject to the following conditions that:

“The appellant shall deposit a sum of Rs.2,10,000/-before the Trial Court.

The appellant shall execute a bond with surety for a sum of Rs.10,50,000/- for appearance before the Trial Court to receive sentence if the order of sentence is confirmed by this Court.

The appellant shall comply this order on or before 04.10.2019

………..….”

In spite of the order, the amount was not deposited before the Trial Court and periodically the time was extended on several occasions. Ultimately, dismissed the Criminal Appeal on 01.02.2020. The Appellate Court while dismissing the appeal noted that the matter was called thrice. The Appellant as well as her Counsel are absent. The appellant has not proceeded with the hearing of the appeal and has not appeared before the Court. There are no grounds to grant further time. Hence, dismissed the appeal for non-prosecution. Hence, the present revision petition is filed.

Having considered the material available on record, the Trial Court ought to have considered the matter on merits instead dismissed the Criminal Appeal for non-prosecution. The order sheet also reveals that the order was not complied with in spite of periodically time was extended for compliance; on the very next day calling the matter thrice, dismissed the appeal. Hence, the order impugned is not sustainable in the eye of law since the matter is not considered on merits and the same is dismissed for non-prosecution. The matter requires to be set aside and remanded to the Appellate Court to consider the matter on merits. Hence, it requires an interference of this Court.

It is also important to note that it is borne out from the records that though an order was suspended subject to the condition that the amount was not deposited before the Trial Court and periodically time was extended, on a direction of this Court, an amount of Rs.2,10,000/- was deposited before the Trial Court. Having considered this is the C.C. of the year 2015, and the appeal is of the year 2019 and it was disposed of in the year 2020 for non-prosecution, the matter requires to be heard and disposed of within a period of two months.

In view of the discussions made above, I pass the following:

ORDER

(i) The revision petition is allowed.

(ii) The impugned order passed in Crl.A.No.248/2019 dated 01.02.2020 by the II Additional District and Sessions judge, Mysuru, is hereby set aside.

(iii) Restore Crl.A.No.248/2019 to the file of II Additional District and Sessions judge, Mysuru.

(iv) The parties are directed to appear before the Appellate Court on 21.03.2021.

(v) Both the counsel are directed to assist the Appellate Court for disposal of the matter within two months from the date of 21.03.2022.