IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 14TH MARCH 2011 / 23RD PHALGUNA 1932 Crl.Rev.Pet.No. 535 of 2011() ----------------------------- CRA.92/2008 of SESSIONS COURT, KALPETTA ST.955/2006 of JUDL.MAGISTRATE OF FIRST CLASS-I, SULTHANBATHERY .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- A.R.BHASKARAN, S/O. ACHUTHAN, MADAPARAMBIL HOUSE, ATHIRATTUKUNNU P.O., KENICHIRA. BY ADV. SRI.S.M.PRASANTH RESPONDENT(S): RESPONDENTS & COMPLAINANT ---------------------------------------- 1. M/S. SREERAM INVESTMENTS LTD., REP.BY BABU JOSE, MANAGER, SULTHAN BATHERY, S.BATHERY, WAYANAD DISTRICT-673 952. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. PUBLIC PROSECUTOR SRI.V.TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 14/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.535 OF 2011 ------------------------------------------------- Dated this the 14th day of March, 2011. ORDER The challenge is against the conviction and sentence imposed against the revision petitioner who faced trial under Section 138 of the NI Act. 2. The counsel for the revision petitioner submitted that in effect the appellate court disposed the matter without hearing the revision petitioner and without considering the contentions of the revision petitioner. Therefore, the learned counsel submitted that the matter may be remitted back to the appellate court for a fresh consideration and disposal after giving an opportunity to the revision petitioner/appellant. 3. Going by the judgment of the appellate court it appears that the appeal was disposed of though on merit, without hearing either the revision petitioner or his counsel. The appellate court has pointed out that though the appeal posted continuously for hearing before that court, there was no representation and no response from the appellant and the respondent also. 4. The learned counsel, on the strength of the decision of Crl.R.P.NO.535 OF 2011 2 the apex court reported in 2011 (1) KLT 881 (SC) Md.Sukur Ali v. State of Assam submitted that the above approach of the appellate court is highly trial arbitrary and therefore, the judgment of the appellate court is liable to be set aside. 5. It is true, as discernible from paragraph 3 of the appellate court judgment neither the parties nor their counsels were heard but the court itself perused records and passed the judgment, confirming the conviction and sentence imposed against the revision petitioner. From the facts narrated by the learned judge of the appellate court it appears that the cheque in question is issued towards the discharge of liability and as per the amount shown in Ext.P1 cheque the liability is Rs.2,43,000/-, which according to me, substantially a good amount. Though the appellate court judge has observed that he had decided to modify the sentence, it appears that in effect the sentence awarded by the trial court is confirmed but the default sentence is additionally imposed. It goes without saying that the finding of appellate court that the petitioner is liable to be convicted and punished under Section 138 of the NI Act is against interest of the revision petitioner and as a consequence of such finding the revision petitioner has to undergo three months simple Crl.R.P.NO.535 OF 2011 3 imprisonment and he has to pay such huge amount towards the compensation to the complainant. I am not expressing any opinion regarding the correctness of findings and merit of the case especially in the light of the manner in which, I propose to dispose this revision petition. 6. As rightly pointed out by the counsel for the petitioner, it appears that no effort is is seen taken by the appellate court to procure the presence of the revision petitioner or their counsel before passing such judgment. Them failure on the part of the appellate court to bring to the notice of the appellant regarding the posting of case for disposal, according to prejudicial to the interest of the petitioner. Therefore, according to me it is only just and proper to remit the matter back to the appellate court for fresh consideration. It is equally important to note that the cheque in question is dated as 17.11.2006 in the scheduled of the trial court judgment, which pronounced on 4.4.2008 but so far no amount is seen paid to the complainant. It is also discernible from the order of the appellate court that there was negligence either from the part of the revision petitioner or from his counsel in appearing before the appellate court and prosecuting the appeal. Therefore, according to me while Crl.R.P.NO.535 OF 2011 4 remitting the matter back to the appellate court, only on terms by which the petitioner can be directed to deposit half of the cheque amount in the trial court within a reasonable time. In the result, this revision petition is disposed of setting aside the judgment dated 30.10.2010 in Crl. Appeal No.92 of 2008 of the Sessions Court, Wayanad and the matter remitted back to the same court for fresh disposal, on condition that the revision petitioner depositing half of the cheque amount within 45 days from today in the trial court and the revision petitioner is further directed to produce receipt from the trial before the appellate court showing the remittance as directed above and on receiving such receipt the appellate court is directed to post the appeal for hearing on a date to be fixed by the appellate court and dispose the appeal after hearing the parties concerned as expeditiously as possible, at any rate within three months on producing the receipt of the trial court as directed above. V.K.MOHANAN, JUDGE pm