Andhra Pradesh HC Sets Aside Default Dismissal of NI Act Criminal Appeal; Says Appellate Court Cannot Dismiss for Non-Prosecution When Counsel's Presence Is on Record

The Andhra Pradesh High Court held that a criminal appeal against conviction cannot be dismissed for default, and directed the III Additional District Judge, Bhimavaram to rehear the NI Act appeal on merits within two months.

The High Court of Andhra Pradesh, sitting at Amaravati, allowed a criminal revision on 6 May 2026, setting aside an order of the III Additional District Judge, Bhimavaram that had dismissed a criminal appeal for default without examining its merits. Dr. Justice Venkata Jyothirmai Pratapa, sitting singly, found the dismissal order self-contradictory on its face: the same order that recorded the presence of the appellant's advocate went on to dismiss the appeal on the ground that the appellant had not come forward to prosecute it. The High Court held that once an appellate court acknowledges counsel's presence, it cannot treat the appeal as unrepresented, and that no criminal appeal against conviction can be disposed of by default — only on merits after perusal of the record. The Registry was also directed to circulate the order to all judicial officers in Andhra Pradesh through the Principal District Judges.

The Conviction and the Appeal That Was Dismissed

Badeti Sridhar, the proprietor of Annapurna Poultries, Attili Village, West Godavari District, faced prosecution in C.C.No.657 of 2017 before the Additional Judicial Magistrate of First Class, Bhimavaram for offences under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881. The complainant, Kammila Suru Babu, examined two witnesses and marked ten documentary exhibits. Sridhar examined two defence witnesses and marked no documents.

After a full-fledged trial, the trial judge found Sridhar guilty and sentenced him to one year of simple imprisonment and a fine of Rs. 7,90,000. Failure to pay the fine was to result in a further six months of simple imprisonment.

Sridhar challenged the conviction by filing Crl.A.No.218 of 2023 before the III Additional District Judge, Bhimavaram under Section 374 of the Code of Criminal Procedure. On 23 June 2025, the appellate court dismissed that appeal for default. The dismissal order stated that a bailable warrant was pending against the appellant and that he had not come forward to prosecute the appeal.

The dismissal order, reproduced in the High Court's judgment, also recorded in its preamble the presence of Sri G. Sathi, Advocate for the Appellant/Accused. The order made no mention of the advocate's absence at any point.

The Self-Contradiction the High Court Identified

Before the High Court, Sri Venkata Narayana Rao Vedula, counsel for Sridhar, argued that the impugned order was unsustainable on its face: the appellate judge had dismissed the appeal for non-prosecution on the ground of the appellant's absence even though counsel was present. He added that the appellate judge did not choose to record the presence of the counsel and proceeded to dismiss the matter.

Dr. Justice Venkata Jyothirmai Pratapa directed counsel to file an affidavit on the point. Counsel's affidavit stated that Sridhar had been diligently prosecuting the matter, that there was no wilful default or negligence, and that when the matter was listed on 23 June 2025, counsel was present before the appellate court and had sought a passover on account of bona fide circumstances. According to the affidavit, the appellate judge proceeded without considering that request and dismissed the appeal.

The High Court found that the preamble of the impugned order itself resolved the dispute. The appellate judge had specifically recorded “Sri G.Sathi advocate for Petitioner/Appellant/Accused” as present. The subsequent observation that the “Appellant/Accused called absent” and the consequential dismissal were, in the High Court's words, self-contradictory and legally unsustainable. Having acknowledged counsel's appearance, the appellate court could not treat the appeal as unrepresented.

The Legal Bar Against Dismissal for Default in Criminal Appeals

Dr. Justice Venkata Jyothirmai Pratapa went further to hold that the infirmity was not merely factual but ran deeper into the statutory framework. A criminal appeal filed under Section 374 of the Code of Criminal Procedure (Section 415 of the Bharatiya Nagarik Suraksha Sanhita, 2023) is a statutory right conferred on a convicted accused. Once such an appeal is admitted, the appellate court is under an obligation to examine the correctness, legality, and propriety of the judgment under challenge.

The High Court held that the Code of Criminal Procedure does not contemplate dismissal of a criminal appeal for default merely because the appellant or counsel is absent on the date of hearing. The appellate court must dispose of the appeal on merits after perusal of the record, consideration of the grounds raised, and after hearing the appellant or his counsel — or, if necessary, after appointing an amicus curiae.

Referring to the Supreme Court's decision in Bani Singh and others v. State of U.P. (AIR 1996 SC 2439), the High Court quoted the Supreme Court's reading of Sections 385 and 386 of the Code: the plain language of those sections does not contemplate dismissal for non-prosecution simpliciter, and “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 K.S. Panduranga v. State of Karnataka (AIR 2013 SC 2164), the Supreme Court reiterated the Bani Singh position and set out the governing principles: the appellate court cannot dismiss a criminal appeal for non-prosecution without examining the merits; the court is not bound to adjourn if both appellant and counsel are absent; it may adjourn as a matter of prudence but is not obliged to; it can dispose of the appeal after perusing the record; and if the court finds it appropriate, it may appoint counsel at State expense. The Supreme Court also held in Panduranga that the contrary view taken in Mohd. Sukur Ali — that a court cannot decide a criminal appeal in the absence of counsel — was per incuriam the larger bench ruling in Bani Singh.

The High Court also noted the Supreme Court's order in K. Muruganandam and others v. State (LL 2021 SC 384), which set aside a Madras High Court order dismissing a criminal appeal for non-prosecution, holding that the court is obliged to appoint an amicus curiae if the accused is not represented, but cannot dismiss the appeal for default.

On the specific question of personal attendance, Dr. Justice Venkata Jyothirmai Pratapa referred to Meenakshi v. State of Haryana and another (2026 LiveLaw (SC) 60), where the Supreme Court held that once a convicted appellant's sentence is suspended and bail is granted, insisting on personal appearance on every date of hearing is unnecessary and burdensome. While the present case stood on a different factual footing, the High Court held that the ratio supported Sridhar's position: the appellant's personal absence, by itself, is not a sufficient reason to dismiss an appeal or to refuse its consideration. The High Court added that even if an appellate court directs an appellant to deposit part of a compensation amount as a condition of bail, failure to comply may lead to cancellation of bail but not dismissal of the appeal for default.

Counsel for the Petitioner also placed reliance on a Madras High Court decision in P. Sethu v. R. Selvakumaran (Crl.R.C.(MD) No.519 of 2024, dated 04.10.2024), which, in a similar Section 138 NI Act matter, had set aside the default dismissal of a criminal appeal and directed restoration, applying the Bani Singh and Panduranga principles.

Absence of Any Merits Discussion in the Impugned Order

The High Court examined the text of the dismissal order against what an appellate order in a criminal appeal must contain. It found no discussion of the grounds in the memorandum of appeal, no appraisal of the evidence, and no independent consideration of the correctness of the conviction and sentence. The entire basis of dismissal was the alleged absence of the appellant.

Such disposal, the High Court held, amounts to a dismissal for default and not a decision on merits as contemplated by the Code. The recording of the appellant's counsel's presence in the preamble itself negated the factual foundation on which the appeal was dismissed. Even setting that aside, the appellate court had no jurisdiction to dismiss a criminal appeal against conviction for default without examining the merits of the case.

The High Court stated that the only course open to the appellate court, even assuming neither the appellant nor his counsel was present, was to either adjourn the matter or to dispose of the appeal on merits in accordance with law. The impugned order suffered from a patent legal infirmity and was in direct contravention of settled principles governing disposal of criminal appeals.

Direction to Circulate Order to All Judicial Officers

Beyond restoring the appeal, Dr. Justice Venkata Jyothirmai Pratapa issued a direction with wider reach. The Registry was directed to communicate a copy of the order to all judicial officers in the State of Andhra Pradesh through the Principal District Judges concerned, for information and necessary guidance. This direction signals that the High Court regarded the error in the impugned order as not an isolated occurrence.

Order

Criminal Revision Case No. 502 of 2026 was allowed. The order dated 23 June 2025 passed in Crl.A.No.218 of 2023 by the III Additional District Judge, Bhimavaram was set aside. Crl.A.No.218 of 2023 was restored to the file of the III Additional District Judge, Bhimavaram. The appellate judge was directed to dispose of the appeal afresh on its merits, after affording reasonable opportunity of hearing to both parties, as expeditiously as possible and preferably within two months from the date of receipt of a copy of the order. Pending miscellaneous applications, if any, were closed.