IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 16TH MARCH 2011 / 25TH PHALGUNA 1932 Crl.Rev.Pet.No. 3365 of 2004(A) ------------------------------- CRA.125/2003 of SESSIONS COURT, ALAPPUZHA ST.102/2000 of CHIEF JUDICIAL MAGISTRATE, ALAPPUZHA .................... REVN. PETITIONER/ APPELLANT/ACCUSED: UDAYAKUMAR, S/O. SADANANDAN, PUTHENPARAMBIL, AVALOOKKUNNU P.O., ALAPPUZHA. BY ADV. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN RESPONDENT: 1. K.B. BABU, VADAKKETHALACKAL HOUSE, NEHRU TROPHY WARD, AVALOOKKUNNU P.O., ALAPPUZHA. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR MR. PUZHAKKARA MUHAMMED THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 16/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.C. HARI RANI, J. ====================== CRL.R.P. NO. 3365 OF 2004 ======================= Dated this the 16th day of March 2011 ORDER This revision petition is preferred by the accused against the judgment dated 3/11/2004 in Crl.Appeal No.125/2003 of the Sessions Court, Alappuzha. 2. The revision petitioner/accused was found guilty and convicted thereunder by the Chief Judicial Magistrate, Alappuzha for the offence under Section 138 of the Negotiable Instruments Act as per judgment dated 28/2/2003 in S.T.No.102/2000. Accordingly, the revision petitioner herein was sentenced to undergo simple imprisonment for one month and to pay a compensation of Rs.5,500/- under Section 357(3)Cr.P.C. and in default to undergo simple imprisonment for a further period of 15 days. That order of conviction and sentence has been challenged by the revision petitioner before the Court of Sessions, Alappuzha in Crl.A.No.125/2003. That appeal was CRRP 3365/2004 -2- dismissed for want of steps and due to non-representation on the side of the appellant/accused. 3. Heard the learned counsel for the revision petitioner and the learned Public Prosecutor. No representation for the first respondent. 4. On a perusal of the judgment of the appellate court, it is seen that notice issued to the first respondent/complainant in Crl.A.No.125/2003 was returned unserved. Thereafter, several postings were made for taking steps to issue notice to the first respondent as shown in paragraph 4 of the judgment and ultimately the case was dismissed on 3/11/2004. 5. Learned counsel for the revision petitioner after relying on the decision of the Apex Court in Bani Singh v. State of U.P., A.I.R.1996 S.C.2439 argued that the criminal appeal should not be dismissed on the ground of non-representation and for want of steps and the appeal should be disposed of on merits. This proposition cannot be challenged and has not been challenged by the first respondent as also the learned Government Pleader. Learned counsel for the revision petitioner would submit that failure to take steps in the case was not CRRP 3365/2004 -3- intentional or deliberate and an opportunity may be given to contest his case. In a complaint filed for the offence under Section 138 of the Negotiable Instruments Act, it may not be proper to deny opportunity to the accused to defend his case. Interest of justice warrants an opportunity to be granted. Accordingly, this revision petition is allowed and the impugned judgment of Crl.Appeal No.125/2003 of the Sessions Court, Alappuzha dated 3/11/2004 is set aside and the appeal is restored back to file. Notice shall be ordered by the appellate court regarding the posting of this case. Revision petitioner is directed to take steps within ten days from the receipt of such notice. Send the records immediately to the appellate court. The court below to proceed with the appeal in accordance with law. Sd/- M.C. HARI RANI JUDGE ks. TRUE COPY P.S. TO JUDGE