AVINASH KALING Vs. K. B. CHERIAN

JUDGEMENT

(1.) With consent of the parties, heard the matter finally at motion stage itself.

(2.) Facts of the case in brief are that by the judgment of the conviction and sentence dated 17-6-2013 passed in Cr. Complaint Case No. 563/2011, the Chief Judicial Magistrate, Durg by holding the accused/appellant/petitioner guilty for the offence under Section 138 of the Negotiable Instruments Act, 1881 (in brevity 'Act of 1881'), sentenced him to undergo S.I. for 3 months and also under the provision of Section 357 of Cr.P.C. directed to pay Rs. 7 lacs to the complainant by way of compensation and in default of payment of compensation the accused was directed to undergo imprisonment for six months. The petitioner/accused preferred an appeal bearing Cr. A. No. 120/2013 (Avinash Kaling -v- K.B. Cherian) before appellate court/2nd Additional Sessions Judge, Durg. During the pendency of the appeal, the petitioner/accused moved three applications under Section 391 of the Cr.P.C. dated 13-10-2014, 18-12-2014 and 24-1- 2015. The appellate court held that it would be appropriate to dispose of the said three applications at the time of judgment and thereby the appellate court kept all the three applications pending and the matter was listed for final arguments. Against said order, the petitioner i.e appellant/accused has preferred instant Cr.M.P. invoking jurisdiction vested to this Court under Section 482 of Cr.P.C. praying for a direction to the appellate court to dispose of the pending applications under Section 391 of the Cr.P.C. before deciding the appeal.

(3.) Learned counsel for the petitioner submits that as per provisions of Section 391 of the Cr.P.C. and as per settled law, the appellate court is required to decide the said three applications before passing the judgment. By keeping the applications pending, the appellate court has committed an error of law. Hence the appellate court may be ordered to dispose of those applications prior to the judgment.