IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 24TH MAY 2011 / 3RD JYAISHTA 1933 Crl.Rev.Pet.No. 1334 of 2011() ------------------------------ ST.1070/2008 of JUDL.MAGISTRATE OF FIRST CLASS, SULTHANBATHERY .................... REVN. PETITIONER: APPELLANT/ACCUSED -------------------------------------- MUHAMMED SAMEER A.A., S/O.ABU, ANAKKAMPALAM HOUSE, THOVERIMALA P.O., SULTHAN BATHERY. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS: COMPLAINANT AND STATE ------------------------------------ 1. M/S.SREE GOKULAM CHITS & FINANCE CO. (PVT) LTD., KIZHEKKEBAGATH COMPLEX, SULTHAN BATHERY, REP. BY ITS AUTHORIZED REPRESENTATIVE SRI.K.N.SUNIL, S/O.NARAYANAN, AGED 35 YEARS, KANDAMCHIRAYIL HOUSE, MYLAMBADI, PURAKKADI AMSOM, SULTHAN BATHERY. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. REKHA C. NAYAR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 24/05/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 1334 of 2011 --------------------------------------------- Dated this the 24th day of May, 2011 O R D E R This Crl.R.P is directed against the judgment dated 21.1.2011 in Crl.A.No.157 of 2010 of the Sessions Court, Wayanad, Kalpetta by which the learned Sessions Judge dismissed the appeal confirming the conviction and sentence ordered by the trial court against the revision petitioner under section 138 of the Negotiable Instruments Act. 2. Learned counsel for the revision petitioner submitted that the judgment of the learned Sessions Judge is not sustainable for the sole reason that the impugned judgment of the learned Sessions Judge is passed without hearing the revision petitioner or his counsel. 3. I have perused the judgment of the appellate court. In the first paragraph of the said judgment, it is stated : “Though the appeal filed on the grounds alleged in the appeal memorandum, appellant's counsel not Crl.R.P NO.1334 of 2011 :-2-: turned up for arguing. Though notice served to the first respondent/complainant, no vakalath filed or the first respondent appeared before court. Hence the matter is taken for orders”. Thus it is crystal clear from the above judgment that the judgment, which is against the revision petitioner, is passed without hearing him. 4. As per the judgment of the trial court, which is dated 11.6.2010 in S.T.No. 1070 of 2008 of the Judicial First Class Magistrate-I, Sulthan Bathery, the revision petitioner stands convicted under section 138 of the NI Act and he is accordingly, sentenced to undergo simple imprisonment for a period of three months and to pay a compensation of Rs.1,26,000/- to the complainant therein under section 357(3) Cr.P.C. and the default sentence is fixed as simple imprisonment for a period of one month. It goes without saying that the above order will adversely affect the interest of the accused and, at this stage, this Court cannot presume that if the matter was heard in the presence of the counsel for the revision petitioner, the result would have been the same. Crl.R.P NO.1334 of 2011 :-3-: 5. Time and again the Apex Court has held that appeals preferred by the accused shall not be dismissed for default. Recently, the Apex Court, in Md.Sukur Ali v. State of Assam ( 2011 Crl.L.J.1690), has held especially in paragraph 7 as follows: “We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the 'heart and soul' of the fundamental rights. In the above decision, the Apex Court further held: “In our opinion, a criminal case should not be decided against the accused in the absence of a counsel.....”. Crl.R.P NO.1334 of 2011 :-4-: Having regard to the facts and circumstances involved in the case, especially, as the impugned judgment is passed without hearing the revision petitioner/accused and in view of the settled legal position, I am of the view that the matter requires to be remitted back to the appellate court for fresh consideration and for fresh disposal, especially, in the light of the decision of the Apex Court cited supra. In the result, this Crl.R.P is disposed of setting aside the judgment dated 21.1.2011 in Crl.A.No.157 of 2010 of the Sessions Court, Wayanad, Kalpetta and the matter is remitted back to the appellate court for fresh consideration and for passing fresh orders in the appeal after hearing the revision petitioner/accused or his counsel and if the revision petitioner's counsel fails to appear, the learned Sessions Judge shall see that the appeal is heard on merit by adopting the procedure prescribed by the Apex Court in the above decision. Accordingly, the revision petitioner is directed to appear before the appellate court on 8th July, 2011, either in Crl.R.P NO.1334 of 2011 :-5-: person or through his counsel, on which date the appellate court is directed to restore the appeal on file and proceed to hear the matter on merit in accordance with the procedure and law and dispose of the same accordingly. V.K.MOHANAN, Judge. KVM/-