IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 30TH JUNE 2011 / 9TH ASHADHA 1933 Crl.Rev.Pet.No. 1595 of 2011() ------------------------------ CRA.281/2007 of ADDL. DISTRICT & SESSIONS COURT (ADHOC)-IV, TRIVANDRUM ST.63/2006 of THE JFCM-II, VARKALA .................... REVN. PETITIONER: APPELLANT ------------------------------ R. SELVARAJ, S/O. RAJAN, DOCUMENT WRITER, DOCUMENT WRITERS' OFFICE, KADAKKAL, KOLLAM DISTRICT, RESIDING AT OLD AJMAL MANZIL, KOTTAPURAM, ALTHARAMOODU, ELAMPAZHANOR.P.O, KOLLAM DISTRICT. BY ADV. SRI.R.T.PRADEEP RESPONDENTS: -------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. D. RADHAKRISHNAN, S/O. DAMODARAN, ANIL NIVAS, NEAR G.H.S. VARKALA. R1 BY P.P.SRI V. TEK CHAND R2 BY ADV. SRI.M.R.RAJESH THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P. No. 1595 of 2011 ---------------------------------------- Dated the 30th day of June, 2011 ORDER The accused, in a prosecution for the offence under section 138 of the Negotiable Instruments Act, is the revision petitioner and his main grievance in this Crl.R.P, is against the judgment of the appellate court since the learned Sessions Judge dismissed the appeal without hearing the petitioner or his counsel. 2. Heard the counsel for the petitioner as well as the counsel for the 2nd respondent/complainant and I have perused the judgments of the trial court as well as the appellate court. 3. The allegation against the accused is that he had committed the offence punishable under section 138 of the NI Act connected with Ext.P1 cheque dated 1.5.2004 which covers an amount of Rs.5 lakhs. The trial court by its judgment dated 29.3.2007 in S.T.No.63 of 2006 convicted the petitioner under section 138 of the NI Act and accordingly, sentenced him to undergo simple crrp 1595/11 2 imprisonment for one year and also directed him to pay a compensation of Rs.5lakhs to the complainant under section 357(3) Cr.P.C and the default sentence was fixed as 3 months simple imprisonment. It is the above conviction and sentence and the findings of the trial court challenged in the Sessions court by filing Crl.A.No.281/2007. By judgment dated 30.7.2010, the court of Addl.District & Sessions Judge, Fast track (Adhoc) No.IV, Thiruvananthapuram, allowed the appeal only in part and thus while confirming the conviction, the sentence is reduced into one day imprisonment, i.e. till the rising of the court, and though the direction to pay compensation and the sentence etc are confirmed, the default sentence is enhanced to simple imprisonment for a period of one year. 4. The learned counsel for the petitioner submitted that the petitioner had preferred the above appeal through an advocate of his choice but as evident from paragraph 12 of the appellate court judgment, it can be seen that the counsel did not appear and the appellate court proceeded with the appeal and disposed of the same against the crrp 1595/11 3 revision petitioner. 5. Regarding the above facts, there is no dispute from the part of the counsel appearing for the 2nd respondent/complainant. In the decision in Md. Sukur Ali v. State of Assam (2011 Crl.L.J 1690) the Apex Court has held that in the absence of the counsel, the case should not be decided against the accused but in such a situation, the court should appoint a counsel. 6. From the facts involved in the case, it appears that the allegation against the accused is that he had committed the offence connected with the cheque which covers an amount of Rs. 5 lakhs. As per the findings of the trial court, the petitioner has committed the said offence and therefore, he is bound to compensate the complainant and to pay Rs.5 lakhs. As far as the accused is concerned, by filing an appeal he will get an opportunity to reappreciate the evidence by a superior court and he can canvas for an acquittal, as the appeal proceedings is the continuation of the trial, but because of the approach of the learned Sessions Judge, the accused petitioner has lost those opportunities. From the crrp 1595/11 4 impugned judgment, it is not discernible as to whether any notice was sent to the accused/petitioner in the absence of the counsel for the accused/petitioner. Therefore, following the dictum laid down by the Apex Court in the above decision, I am of the view that the learned Sessions Judge ought not have proceeded to dispose of the appeal without hearing the revision petitioner/accused. Therefore, the judgment of the appellate court cannot be sustained, consequently, the matter requires reconsideration by the appellate court after hearing the accused as well as the respondent. In the result, this Crl.R.P. is disposed of setting aside the judgment dated 30.7.2010 of the court of Additional District & Sessions Judge, Fast Track (Adhoc) No.IV, Thiruvananthaparum in Crl.A.No.281/2007 and remitting the matter to the same court for fresh disposal after giving adequate opportunity to the accused as well as the complainant, the 2nd respondent herein. Counsel for the 2nd respondent submitted that, as the cheque is pertained to the year 2004, a time limit may be fixed for the disposal crrp 1595/11 5 of the appeal. The above submission, according to me deserves positive consideration. Accordingly, the learned sessions Judge is directed to restore the appeal on file on 1.8.2011 on which date, both the parties are directed to appear before the appellate court either in person or through their counsel for which the petitioner is directed to produce a copy of this order before the appellate court in advance and accordingly, the appellate court is directed to proceed with the appeal and dispose of the same in accordance with merit, as expeditiously as possible , at any rate within in a period of two months from the date of posting of the appeal as directed above. V.K.MOHANAN, JUDGE kvm/- crrp 1595/11 6 kvm/-