- 1 - HC-KAR NC: 2026:KHC:29492 CRL.P No. 7759 of 2026 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JUNE, 2026 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA CRIMINAL PETITION NO. 7759 OF 2026 BETWEEN: DILIP H S S/O SIDDARAMU.H.S., AGED ABOUT 36 YEARS, R/O B. HOSUR VILLAGE, KERAGODU HOBLI, MANDYA TALUK, MANDYA DISTRICT - 571 401 …PETITIONER (BY SRI. K.L. SREENIVAS, ADVOCATE) AND: LAKSHMINARAYANA C S S/O LATE SIDDAIAH, AGED ABOUT 66 YEARS, R/O CHANDAGALU VILLAGE, BASARALU HOBLI, MANDYA TALUK, MANDYA DISTRICT - 571 401 …RESPONDENT (BY SMT. WAHEEDA M.M., HCGP FOR R1) THIS CRL.P IS FILED U/S 482 OF CR.P.C. (U/S 528 BNSS) BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONOURABLE COURT MAY BE PLEASED TO SET ASIDE THE ORDER DATED 06.04.2026 PASSED IN CRL.A.NO.205/2025 BY THE HONBLE IV ADDL. DISTRICT JUDGE, MANDYA AND THEREBY RESTORE THE APPEAL ON ITS ORIGINAL SIDE. THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: Digitally signed by PADMAVATHI B K Location: High Court of Karnataka - 2 - HC-KAR NC: 2026:KHC:29492 CRL.P No. 7759 of 2026 CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER The petitioner is before this Court, seeking the following prayer: (a) Call for the Records in C.C. No.205/2025 from the Court of the Hon'ble IV Addl. District Judge, Mandya. (b) Set aside the order dated 06-04-2026 passed in Crl.A.No.205/2025 by the Hon'ble IV Addl. District Judge, Mandya, and thereby restore the appeal on its original side. (c) Pass any other suitable order in favour of the petitioner as this Hon'ble Court deems fi; in the circumstances of the case, in the interest of justice and equity." 2. Heard Sri. K.L. Sreenivas, learned counsel appearing for the petitioner, Smt. Waheeda M.M., learned HCGP appearing for the respondent and have perused the material on record. 3. The petitioner is the complainant and the respondent is the accused. The concerned Court acquits the respondent - accused for an offence punishable under Section 138 of the Negotiable Instruments - 3 - HC-KAR NC: 2026:KHC:29492 CRL.P No. 7759 of 2026 Act, 1881 in C.C.No.664/2024. The complainant files an appeal against the said acquittal. The concerned Court does not answer the appeal on its merit, but dismisses it for non-prosecution. The order reads as follows: "In this matter notice issued to the respondent not served with endorsement that no such person. After that opportunity given to the appellant to furnish correct address of the respondent. But, the appellant failed to furnish PF and necessary envelope with stamp to issue notice to respondent. Last hearing date conditional order passed to do the needful. Today in the morning session at 3.00 pm and at 4.30 pm, when matter called no representation from appellant side. Conditional order not complied. Hence, appeal dismissed for non prosecution." 4. It is by now a well-settled principle of law that an Appellate Court, whether in an appeal against acquittal or conviction, cannot dismiss the appeal for its non-prosecution, but will have to answer the appeal on its merits even in the absence of the counsel or the parties to the lis. The Apex Court in the case of BANI SINGH v. STATE OF U.P.1, observes as follows: "……… ……… ……… 2. The facts relevant for our consideration can be briefly stated. On 13-6-1979, the VII Additional Sessions Judge, Bulandshahr, recorded an order convicting the appellants under Sections 366 and 368 of the Penal Code, 1 (1996) 4 SCC 720 - 4 - HC-KAR NC: 2026:KHC:29492 CRL.P No. 7759 of 2026 1860 and sentenced them to rigorous imprisonment for three years with a fine of Rs 100 each. The appellants filed an appeal against this order in the High Court of Allahabad. On 18-6-1979, the appeal was admitted by the High Court and notice was issued. The High Court also issued an interim stay on the execution of the sentence and the realization of fine while granting bail to the appellants. On 28-11-1990, the matter came up for hearing before the High Court. While dismissing the appeal for non-prosecution, the Court recorded the following order: “The List has been revised. No one present to argue the case on behalf of the appellant. Shri T.B. Islam A.C.A. is present on behalf of the State. In view of the law laid down in the case of Ram Naresh Yadav v. State of Bihar [AIR 1987 SC 1500 : 1987 Cri LJ 1856] , the appeal is dismissed for non-prosecution without going into the merits of the case.” The appellants preferred an appeal before this Court. On 19-1-1995, a Division Bench of this Court, while hearing the matter, examined the judgment in Ram Naresh Yadav v. State of Bihar [AIR 1987 SC 1500 : 1987 Cri LJ 1856] and came to the conclusion that it was in conflict with the earlier ruling of this Court in Shyam Deo Pandey v. State of Bihar [(1971) 1 SCC 855 : 1971 SCC (Cri) 353 : AIR 1971 SC 1606] . It, therefore, directed that the matter be heard by a larger Bench. Subsequently, the matter was posted before this Bench. ……… ……… ……… 8. Section 385(2) clearly states that if the appellate court does not dismiss the appeal summarily, it ‘shall’, after issuing notice as required by sub-section (1), send for the record of the case and hear the parties. The proviso, however, posits that if the appeal is restricted to the extent or legality of the sentence, the court need not call for the record. On a plain reading of the said provision, it seems clear to us that once the appellate court, on an examination of the grounds of appeal and the impugned judgment, decides to admit the appeal for hearing, it must send for the record and then decide the appeal finally, unless the appeal is restricted to the extent and legality of the sentence. Obviously, the requirement to send for the record is provided for to enable the appellate court to peruse the record before finally - 5 - HC-KAR NC: 2026:KHC:29492 CRL.P No. 7759 of 2026 deciding the appeal. It is not an idle formality but casts an obligation on the court to decide the appeal only after it has perused the record. This is not to say that it cannot be waived even where the parties consent to its waiver. This becomes clear from the opening words of Section 386 which say that “after perusing such record” the court may dispose of the appeal. However, this section imposes a further requirement of hearing the appellant or his pleader, if he appears, and the public prosecutor, if he appears. This is an extension of the requirement of Section 385(1) which requires the court to cause notice to issue as to the time and place of hearing of the appeal. Once such a notice is issued the accused or his pleader, if he appears, must be heard. 9. The question is, where the accused is the appellant and is represented by a pleader, and the latter fails to appear when the appeal is called on for hearing, is the appellate court empowered to dispose of the appeal after perusing the record on its own or, must it adjourn the appeal to a future date and intimate the accused to be present on the next date of hearing? 10. In Shyam Deo case [(1971) 1 SCC 855 : 1971 SCC (Cri) 353 : AIR 1971 SC 1606] , this Court ruled that the appellate court must peruse the record before disposing of the appeal; the appeal has to be disposed of on merits even if it is being disposed of in the absence of the appellant or his pleader. Interpreting Section 423 of the old Code (the corresponding provisions are Sections 385-386 of the present Code), this Court in paragraph 19 of the judgment held as under: (SCC p. 861, para 19) “The consideration of the appeal on merits at the stage of final hearing and to arrive at a decision on merits and to pass final orders will not be possible unless the reasoning and findings recorded in the judgment under appeal are tested in the light of the record of the case. After the records are before the Court and the appeal is set down for hearing, it is essential that the appellate court should: (a) peruse such record; (b) hear the appellant or his pleader, if he appears, and (c) hear the public prosecutor, if he appears. After complying with these requirements, the - 6 - HC-KAR NC: 2026:KHC:29492 CRL.P No. 7759 of 2026 appellate court has full power to pass any of the orders mentioned in the section. It is to be noted that if the appellant or his pleader is not present or if the public prosecutor is not present it is not obligatory on the appellate court to postpone the hearing of the appeal. If the appellant or his counsel or the public prosecutor or both, are not present, the appellate court has jurisdiction to proceed with the disposal of the appeal; but that disposal must be after the appellate court has considered the appeal on merits. It is clear that the appeal must be considered and disposed of on merits irrespective of the fact whether the appellant or his counsel or the public prosecutor is present or not. Even if the appeal is disposed of in their absence, the decision must be after consideration on merits.” (emphasis added) 11. In our view, the above-stated position is in consonance with the spirit and language of Section 386 and, being a correct interpretation of the law, must be followed. ……… ……… ……… 14. We have carefully considered the view expressed in the said two decisions of this Court and, we may state that the view taken in Shyam Deo case [(1971) 1 SCC 855 : 1971 SCC (Cri) 353 : AIR 1971 SC 1606] appears to be sound except for a minor clarification which we consider necessary to mention. 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 - 7 - HC-KAR NC: 2026:KHC:29492 CRL.P No. 7759 of 2026 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. Therefore, with respect, we find it difficult to agree with the suggestion in Ram Naresh Yadav case [AIR 1987 SC 1500 : 1987 Cri LJ 1856] that if the appellant or his pleader is not present, the proper course would be to dismiss an appeal for non-prosecution. ……… ……… ……… 16. Such a view can bring about a stalemate situation. The appellant and his lawyer can remain absent with impunity, not once but again and again till the court issues a warrant for the appellant's presence. A complaint to the Bar Council against the lawyer for non-appearance cannot result in the progress of the appeal. If another lawyer is appointed at State cost, he too would need the presence of the appellant for instructions and that would place the court in the same situation. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. Even if a case is decided on merits in the absence of the appellant, the higher court can remedy the situation if there has been a failure of justice. This would apply equally if the accused is the respondent for the obvious reason that if the appeal cannot be disposed of without hearing the respondent or his lawyer, the progress of the appeal would be halted. 17. In view of the position in law explained above, we are of the view that the High Court erred in dismissing the appeal for non-prosecution simpliciter without examining the merits. We, therefore, set aside the impugned order and remit the appeal to the High Court for disposal on merits in the light of this judgment. The appeal will stand allowed accordingly." (Emphasis supplied) The Apex Court observes that, once a criminal appeal has been admitted, the appellate court cannot dismiss it for default or - 8 - HC-KAR NC: 2026:KHC:29492 CRL.P No. 7759 of 2026 non-prosecution merely because the appellant or his counsel is absent. The appellate court must decide the appeal on merits after examining the record. 5. If the law laid down by the Apex Court is pitted against the facts of this case, what would unmistakably emerge is that the order passed by the concerned Court, dismissing the appeal for non-prosecution is unsustainable in law and deserves to be set aside. Consequently, the appeal deserves to be restored to the file of the concerned Court. 6. For the aforesaid reasons, the following: ORDER (i) The petition is allowed. (ii) The order dated 06.04.2026 passed in Crl.A.No.205/2025 by the IV Additional District Judge, Mandya, stands quashed. (iii) Crl.A.No.205/2025 is restored to the file of the concerned Court. - 9 - HC-KAR NC: 2026:KHC:29492 CRL.P No. 7759 of 2026 (iv) The concerned Court shall regulate its procedure and take the issue to its logical conclusion, bearing in mind the observations made in the course of the order. Sd/- (M.NAGAPRASANNA) JUDGE SJK List No.: 1 Sl No.: 54