IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 2ND SEPTEMBER 2010 / 11TH BHADRA 1932 Crl.Rev.Pet.No. 2608 of 2010() ------------------------------ CRA.15/2010 of ADDL.SESSIONS COURT,-I, MAVELIKKARA ST.489/2007 of JUDL.MAGISTRATE OF FIRST CLASS-I, MAVELIKKARA .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- PUSHPA ANILKUMAR, W/O. ANILKUMAR, MAROOR HOUSE, KOCHUMURI,KRISHNAPURAM VILLAGE. BY ADV. SRI.M.T.SURESHKUMAR RAJA VIJAYARAGHAVAN RESPONDENT(S): COMPLAINANT & STATE ---------------------------------- 1. S.SATHOSH, S/O. SREEDHARAN, GOPASADANAM, PALLICKAL.P.O., KATTANAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY P.P.SMT.SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 02/09/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. ~~~~~~~~~~~~~ Crl.R.P.No.2608 of 2010 ~~~~~~~~~~~~~~~~~ Dated this the 2nd day of September 2010 O R D E R This revision petition is preferred mainly against the judgment of the lower appellate court, since the appeal preferred by the revision petitioner challenging her conviction and sentence u/s.138 of the Negotiable Instruments Act was dismissed for default and without any consideration of her contention on merit. 2. The learned counsel appearing for the revision petitioner submitted that the impugned judgment of the lower appellate court is liable to be set aside especially in the light of the decision of this Court reported in Kerala Kumaran v. State of Kerala [1995(1) KLT 789] and also the Apex Court decision reported in Satin Chandra Pegu v. State of Assam [2007(1) Crimes 33 SC]. 3. The trial court in appeal found that the revision petitioner is guilty u/s.138 of the Negotiable Instruments Act Crl.R.P.No.2608 of 2010 -: 2 :- and convicted her for the said offence and imposed sentence of imprisonment for one day ie; till the rising of the court and also directed to pay compensation of Rs.78,400/- to the complainant u/s.357(3) of Cr.P.C. and in default of paying the amount, the revision petitioner is directed to suffer simple imprisonment for a further period of two months. Challenging the above conviction and sentence, the revision petitioner herein preferred Crl.A.No.15/2010, and by judgment dated 23.6.2010, the court of Addl.Sessions Judge-I, Mavelikara dismissed the appeal in the following manner :- “No representation for appellant. Respondent appeared. It appears that the appellant is not intended in proceeding with the appeal. Hence the non appearance. In this result appeal dismissed with cost.” 4. From the above, it is crystal clear that the appellate court has not considered the appeal on merit and dismissed the same on default of the appellant or her counsel in appearing before the court. It is also discernible from the Crl.R.P.No.2608 of 2010 -: 3 :- impugned judgment of the appellate court that the respondent/complainant appeared. It is beyond doubt that an appeal is the continuation of the trial, whereby either of the parties will get one more opportunity to highlight the evidence and materials in a higher judicial forum and the parties concerned can agitate the issue once again. Therefore, especially in the light of the decision referred above, the lower appellate court, even though there is no representation for the parties concerned, ought not to have simply dismissed the appeal and it was incumbent upon the appellate court to consider the merits of the case and the correctness and legality of the judgment impugned before it. But in the present case, the appellate court has not made any effort in that regard. Therefore, according to me, it is only just and proper to remit back the matter to the appellate court for fresh consideration of the appeal and to have a decision on merit after hearing all the concerned parties. In the result, this revision petition is disposed of setting aside the judgment dated 23.6.2010 in Crl.R.P.No.2608 of 2010 -: 4 :- Crl.A.No.15/2010 of the Court of Addl.Sessions Judge-I, Mavelikara and the matter is remanded back to the appellate court for fresh consideration in accordance with the merits and demerits of the case in the appeal after hearing the revision petitioner/accused and the respondents/complainants. Accordingly the revision petitioner is directed to appear before the appellate court on 4th October, 2010 and as on that date, the lower appellate court is directed to restore the appeal on file and proceed to hear the appeal in accordance with procedure and law and dispose the same on merit, at any rate, within 6 months from the date of appearance of the accused/revision petitioner, who is directed to produce the copy of this judgment in the appellate court, on his appearance. Crl.Revision Petition is disposed of as above. V.K.MOHANAN, JUDGE. Jvt