IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI FRIDAY, THE SEVENTH DAY OF MARCH TWO THOUSAND AND TWENTY FIVE PRESENT HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO CRIMINAL REVISION CASE No.239 of 2025 Revision filed under Sections 438 & 442 of BNSS, against the order dated 02.02.2024 passed in Criminal Appeal No.60/2020 on the file of Sessions Judge, Ongole, Prakasam District. Between: Kantheti Radha Krishna Murthy, S/o. Prasad, aged about 43 Business, R/o. Rangaiahpet, Karamchadu Post and Mandal, Prakasam District, A.P. years ...Petitioner/Accused AND 1. The State of AP, Rep by its Public Prosecutor, High Court of Andhra Pradesh, at Amaravathi. 2. Daggubati Mallikarjuna Rao, S/o. Nageswara Rao, aged about 45 Years, Cultivation, R/o. Near State Bank of India, Laramchedu Post and Mandal, Prakasam District. ...Respondents/Complainant lA NO: 2 OF 2025 Petition under Section 528 of BNSS praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be •Sr pleased to suspend the order dated 02.02.2024 passed in Criminal Appeal No.60/2020 on the file of Sessions Judge, Ongole, Prakasam District. : Sri Srinivasa Kannamareddy Counsel for the Petitioner Counsel for Respondent No.1: Public Prosecutor Counsel for Respondent No.2: None Appeared The Courtmade the following: 1 % APHC010092742025 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) [3369] FRIDAY, THE SEVENTH DAY OF MARCH TWO THOUSAND AND TWENTY-FIVE PRESENT THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO CRIMINAL REVISION CASE NO: 239/2025 Between: Kantheti Radhakrishna Murthy ...PETITIONER AND ...RESPONDENT(S) The State Of Ap and Others Counsel for the Petitioner: 1.SRINIVASA KANNAMA REDDY Counsel for the Respondent(S): 1. PUBLIC PROSECUTOR The Court made the following ORDER AT THE TIME OF ADMISSION: This Criminal Revision Case, under Sections 438 and 442 of Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘BNSS’) is filed against the Judgment and Order, dated 02.02.2024, in Criminal Appeal No.60 of 2020 on the file of VII Additional District and Sessions Judge, Prakasam District at Ongole (for short, ‘the 1®* Appellate Court’). The Accused/Revision Petitioner was convicted and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.2,00,000/- in a Complaint Case in C.C. No.181 of 2017 on the file of Judicial Magistrate of First Class, Parchur (for short, ‘the Trial Court’) under section 138 of Negotiable Instrument Act, 1881 (for short, N.l. Act'). Aggrieved by the Judgment, he preferred the Criminal Appeal No.60 of 2020. 1. 2 2. I have heard learned Counsel appearing for the Revision Petitioner/Accused and the learned Assistant Public Prosecutor appearing for the Respondent/State. I have carefully reviewed the impugned Judgment and Order in Crl.A.No.60 of 2020. The Appellate Court, vide impugned Judgment and Order, summarily dismissed the Appeal preferred by the Appellant/Accused vide the following Judgment: 3. “Appellant called absent. Process not paid. There is no representation on his behalf. As seen from the record, since from the date of institution of appeal, the appellant did not appear before the Court and paid process to issue summons to the complainant/R1. He did not evince any interest to prosecute the appeal. As such, it is no longer required to keep the record pending on the file requiring the presence of appellate to prosecute the appeal. Hence, the appeal is liable to be dismissed for default of non-prosecution. In the result, the criminal appeal is dismissed for default of non prosecution. After receipt of entire record, the Trial Court is directed to take necessary steps against the appellant/accused for serving the sentence”. 4. Learned Counsel for the Revision Petitioner/Accused submits that if the Accused does not appear and non-payment of process through Counsel appointed by him, the Court is obliged to proceed with the hearing of the case only after appointing amicus curiae but cannot dismiss the Appeal, merely because of non-representation or default of the advocate for the Accused. Learned Assistant Public Prosecutor submits that as per the decisions of the Hon’ble Supreme Court, it is now well settled that a criminal appeal should be disposed of on merits and not by dismissal in default 5. In Dhananjay Rai alias Guddu Rai v. State of Bihar\ the Hon’ble Apex Court held as follows: 6. AIR 2022 SC 3346 3 % "8. The anguish expressed by the Division Bench about the brazen . action of the appellant of absconding and defeating the administration of justice can be well understood. However, that is no ground to dismiss an appeal against conviction, which was already admitted for final hearing, for non-prosecution without adverting to merits. Therefore, the Impugned Judgment will have to be set aside and the Appeal will have to be remanded to the High Court for consideration on merits." In Madan Lai Kapoor v. Rajiv Thapai^, a Two-Judge Bench of the Hon’ble Apex Court held that the rule laid down by this Court that a Criminal Appeal should not be dismissed for default would also apply to Criminal Revisions. The reference thus made was to the decision of a Three-Judge Bench of the Hon’ble Apex Court Court in Ban! Singh v. State of U.P.^ In Bani Singh’s case (supra), the Hon’ble Apex Court held thus: 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 is received, the appellate Court may dispose of the Appeal after hearing the accused or his Counsel. Therefore, the plain language of Sections 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 " 7. 14. In Ganimineni Mahu v. Sakhamuri Rangaiah Chowdary and another*, this Court held in Paragraph No. 14 as follows: 8. ^ (2007) 7 see 623 ^(1996) 4 see 720 ^2020(1)ALD (erl.) 465 (A.P.) 4 # ■ “14. Thus, from the ratio laid down in the aforesaid judgments, the legal position is clear that there is no provision in the Criminal Procedure Code which enables the Courts to dismiss the criminal Appeal or criminal revision for default on account of non-appearance of the appellant or his advocate for hearing in the criminal Appeal or criminal revision. Therefore, even when the appellant or the revision petitioner and their Counsel fails to turn up for hearing in the criminal appeals or criminal revisions inspite of granting several opportunities to them, the Courts cannot dismiss the said criminal appeals or criminal revisions for default. At best the Court can only dispose of the said criminal appeals or criminal revisions on merits as per the material available on record." Given the well-settled legal position, this Court views that the learned Judge could not dismiss the Criminal Appeal for default of appearance. If the Appellant was absent, the learned Judge should have appointed Legal Aid Counsel and then proceeded to dispose of the Appeal on merits. Needless to say, both parties shall cooperate with the Appellate Court to expedite disposal of the Criminal Appeal. Accordingly, the Criminal Revision Case is allowed. The order dated 02.02.2024, in Crl.A.No.60 of 2020, on the file of the Court of VII Additional District and Sessions Judge, Prakasam District at Ongole, is set aside. The matter is remanded to the 1®' Appellate Court for fresh disposal on merits in light of the observations made in the order. 9. 10. In this Criminal Revision Case, pending miscellaneous applications, if any, shall stand closed. Sd/- M RAMESH BABU DEPUTY REGISTRAR //TRUE COPY// SECTION OFFICER To 1. The Sessions Judge, Ongole, Prakasam District. 2. The VII Additional District and Sessions Judge, Ongole, Prakasam District. 3. The Judicial Magistrate of First Class, Parchur, Prakasam District. 4. The Station House Officer, Ongole Police Station, Prakasam District. % 5. Two CCs to the Public Prosecutor, High Court of Andhra Pradesh, Amaravathi [OUT] 6. One CC to Sri Srinivasa Kannama Reddy, Advocate [OPUC] 7. Three CD Copies TK sree HtGH COURT DATED:07/03/2025 ORDER CRLRC.No.239 of 2025 * 09 APR 2025 g ^ . Current Seciion . ^ W ALLOWING THE CRIMINAL REVISION CASE