IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 23RD DECEMBER, 2011 / 2ND POUSHA, 1933 Crl.Rev.Pet.No. 3074 of 2011 ------------------------------------- (CRA.119/2010 of ADDL. SESSIONS COURT, ALAPPUZHA CC.191/2009 of JUDL.MAGISTRATE OF FIRST CLASS-II(MOBILE),ALAPPUZHA) .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: ----------------------------------------------------------------- V.S.JOHNKUTTY, S/O.MUSTER, VELIYIL HOUSE, KATTOOR.P.O., KATTOOR MURI, KALAVOOR VILLAGE, ALAPPUZHA. BY ADV. SRI.D.SUNILKUMAR SRI.K.C.SUDHEER RESPONDENTS(S)/COMPLAINANT AND STATE: ------------------------------------------------------------------- 1. UCO BANK, CULLEN ROAD, ALLEPPEY, REP.BY ITS MANAGER K.RAJ MOHAN, S/O.KESAVAN NAIR, MANAGER, UCO BANK, ALLEPPEY - 688 001. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031. R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------- Crl.R.P.No. 3074 of 2011 ---------------------------------------- Dated this the 23rd day of December, 2011 O R D E R The accused in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act,1881 (for short 'the N.I.Act') is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him. 2. The case of the complainant is that the wife of the accused availed of a loan for which the accused stood as guarantor and for the realisation of the said amount, O.S.No.53 of 2002 was filed before the Sub Court, Alppuzha which was decreed in favour of the plaintiff, which is the complainant and thereafter, the accused approached the complainant and issued cheque for `.2,50,000/- towards the discharge of the said liability and that cheque was dishonoured when presented for encashment and the amount was not paid in spite of statutory notice and thereby the accused has committed the above offence. Crl.R.P.No.3074 of 2011 :-2-: 3. During the trial, PW1 was examined from the side of the complainant and Exts.P1 to P9 were marked. No evidence is adduced from the side of the defence. Finally, the trial court found in favour of the complainant and convicted the accused for the offence under Section 138 of the N.I.Act. 4. Aggrieved by the above conviction and sentence, the accused, who is the revision petitioner herein, preferred an appeal before the Sessions Court, Alappuzha and by judgment dated 31.10.2011 in Crl.A.No.119 of 2010, the court of Additional Sessions Judge, Alappuzha dismissed the appeal confirming the conviction, but subject to certain modification with respect to the sentence. It is the above conviction and sentence challenged in this appeal. 5. Though learned counsel for the petitioner advanced several arguments on facts and on the basis of the evidence on record, I am not proposed to consider the same at this stage, since the appeal was disposed of without a proper hearing of the revision petitioner. In Crl.R.P.No.3074 of 2011 :-3-: paragraph 6 of the judgment of the appellate court, it is specifically stated that at the time of the argument, there was no representation for the appellant and the respondent was heard. According to me, the above approach of the appellate court is not proper. From the order impugned, nothing is discernible, particularly, any steps taken by the appellate court to ensure the presence of the appellant or his counsel. The Apex Court in the decision reported in Md.Sukur Ali v. State of Assam (2011 Crl.L.J., 1690) held that criminal case of the trial, appeal revision should not be decided against the accused in the absence of his counsel. The Apex Court time and again held that the appeal shall not be dismissed for default. Though from the impugned judgment of the appellate court, it appears that the same is not dismissed for default, but virtually, there is no reference to the contentions advanced by the appellant and appreciation of the same on the basis of the evidence and materials on record. Therefore, according to me, instead of entering into any finding on merit on the basis of the contentions Crl.R.P.No.3074 of 2011 :-4-: advanced by the learned counsel for the petitioner, it is only just and proper to remand the matter to the appellate court to dispose of the appeal afresh after giving an opportunity to the revision petitioner as well as the first respondent/complainant. 6. But, it is relevant to note that in the revision petition, no ground is stated for the absence of the revision petitioner or his counsel in the appellate court at the time of hearing of the appeal. Thus, it can be safely concluded that the revision petitioner was negligent in prosecuting the appeal in the lower appellate court properly. Therefore, further opportunity can be given to the revision petitioner only on terms, especially when both the courts below have found in favour of the complainant. In the result, this Criminal Revision Petition is disposed of setting aside the judgment dated 31.10.2011 in Crl.A.No.119 of 2010 of the court of Additional Sessions Judge, Alappuzha and remanded the matter back to the lower appellate court for fresh consideration Crl.R.P.No.3074 of 2011 :-5-: and disposal on condition that the petitioner/accused deposits a sum of `.500/- (Rupees Five Hundred only) in the lower appellate court within one month from today. Accordingly, the lower appellate court is directed to restore Crl.A.No.119 of 2010 on its file on 2nd February,2012 on which date, the revision petitioner or his counsel is directed to appear before the appellate court. On the satisfaction of the appellate court that the revision petitioner deposits the amount within the time granted and appears before the court below either in person or through the counsel, the appellate court is further directed to proceed with the hearing of appeal in accordance with the procedure and law and dispose of the same after hearing both the revision petitioner/accused and the first respondent/complainant. The amount, which would be deposited, shall be paid to the State Exchequer. On the failure of the petitioner in complying with any of the above conditions, this order will stand vacated and the order of the appellate court will revive. Crl.R.P.No.3074 of 2011 :-6-: The Criminal Revision Petition is disposed of as above. V.K.MOHANAN, Judge MBS/ Crl.R.P.No.3074 of 2011 :-7-: V.K.MOHANAN, J. CRL.A.No. 434 OF 2003 JUDGMENT Dated:11.11.2011 Crl.R.P.No.3074 of 2011 :-8-: