IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN TUESDAY, THE 12TH OCTOBER 2010 / 20TH ASWINA 1932 Crl.Rev.Pet.No. 2415 of 2010() ------------------------------ CRA.587/2008 of ADDL. SESSIONS COURT (ADHOC-2), THRISSUR CC.854/2004 of JUDL. MAGISTRATE OF FIRST CLASS COURT, KUNNAMKULAM .................... REVN. PETITIONER(S): APPELLANTS/ACCUSED: -------------------------------------------------------------------- 1. DOSTHY KURIES & INSTALMENTS (P) LTD., MUNDUR DESOM, ANJUR VILLAGE, THRISSUR TALUK, REPRESENTED BY ITS MANAGING DIRECTOR, A.F.THOMAS. 2. A.F.THOMAS, S/O.FRANCIS, AGED 40 YEARS, MANAGING DIRECTOR OF DOSTHY KURIES & INSTALMENTS (P) LTD., MUNDUR DESOM, ANJUR VILLAGE, THRISSUR TALUK. BY ADV. SRI.DINESH MATHEW J.MURICKEN RESPONDENT(S): RESPONDENTS/COMPLAINANT: ------------------------------------------------------------------------ 1. C.A.MATHEW, CHITTATTUKARA HOUSE, P.O.MUNDUR, THRISSUR DISTRICT. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. SRI.C.A.CHACKO, R2 BY PUBLIC PROSECUTOR.SRI.V.TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 12/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: sts V.K.MOHANAN, J. ------------------------------------------ Crl.R.P. No. 2415 of 2010 ---------------------------------------- Dated the 12th Day of October, 2010 ORDER This Crl.Revison Petition is preferred by the accused in a prosecution for the offence under section 138 of the Negotiable Instruments Act as they are aggrieved by the order of conviction and sentence imposed against them, particularly, against the order of the appellate court disposing of their appeal without hearing them. 2. I have heard the counsel appearing for the revision petitioners as well as the respondents. 3. The main attack is against the judgment of the appellate court since according to the revision petitioners, they were not given ample opportunity to prosecute the appeal effectively. In support of the above contention it is pointed out that, their appeal in the court below was admitted on 26.8.2008 and the execution of the sentence was also suspended and subsequently the case was adjourned to 3.1.2009 and thereafter to 26.5.2009. According to the counsel, though the counsel for the CRL.R.P 2415/10 -:2:- appellants in the court below attended the court on 26.5.2009, the appeal was not called and on his subsequent enquiry, he had realised that the case was transferred to the court of Additional Sessions Judge, Thrissur, Fast Track court No.II (Adhoc) and he was told that notice would be issued to the counsel on the posting of the appeal for hearing. But according to the learned counsel, no such notice was received from the appellate court and because of that the counsel in the court below could not appear and the appeal was disposed of on 7.7.2009 without hearing the counsel or the appellant. 4. In the light of the above submission of the learned counsel, this Court called for a report of the Presiding Officer of the appellate court by order dated 18.8.2010. Consequently, a report dated 3.9.2010 was obtained by the Registry wherein it is stated that Crl.Appeal No.587/2008 along with other 49 Crl.Appeals were transferred to Addl.Sessions Judge, Fast Track Court-II, Thrissur as per order No.C3-461/09 dated 18.5.2009. Accordingly, copies of the list of 50 transferred Crl.appeals with posting dates CRL.R.P 2415/10 -:3:- were forwarded to the President of the Bar Association, Thrissur and the President of Advocate Clerks Association, Thrissur and one copy of the list had been published in the notice Board of the District Court and accordingly, the appeal was taken for hearing on 26.5.2009 as notified in the list and on that day, the first respondent/complainant was present and there was no representation for the appellant and hence the case was adjourned to 18.6.2009 for hearing and on that day also the appellant remained absent. Thereafter, notice was ordered to be issued to the appellant in person. Thus accordingly, notice was sent to the appellant by ordinary post directing him to appear in court in person on 27.6.2009. The said notice was returned with the endorsement, “addressee left, returned to sender”. Thus when the matter was taken on 27.6.2009 also, neither the appellant nor his counsel was present and accordingly, the appellate court proceeded with the case on merit and disposed of it accordingly. 5. From the above report, it appears that the contention raised by the counsel for the revision petitioners CRL.R.P 2415/10 -:4:- is not fully correct and there was sufficient notice regarding the posting of the case and the same is further reinforced by the presence of the complainant in the appellate court. 6. However, the cheque in question covers an amount of Rs.3,51,000/- and the trial court finally convicted the revision petitioners/accused and sentenced the first accused to pay a fine of Rs.5000/- and the 2nd accused is sentenced to undergo simple imprisonment for 6 months and also to pay a fine of Rs.3,51,000/-, in default of paying the fine amount, he was directed to undergo simple imprisonment for another three months. It is also ordered that on realisation of the fine amount, the same shall be paid to the complainant as compensation under section 357(1)(b) Cr.P.C. On appeal, the appellate court by its judgment dated 7.7.2009 in Crl.A.No.587/2008, while confirming the conviction, the sentence imposed on the second appellant, 2nd revision petitioner herein, is modified and reduced the sentence of imprisonment to one day, i.e., till the rising of the court CRL.R.P 2415/10 -:5:- directed that he shall appear before the trial court on or before 30.9.2009 and to pay compensation of Rs.3,51,000/- to the complainant as compensation under section 357(3) of Cr.P.C., and the default sentence is fixed as simple imprisonment for three months. It is also ordered that the second appellant, representing the first the appellant, shall appear before the trial court on 30.9.2009 and to pay a fine of Rs.5000/-. It is the above conviction and sentence challenged in this Crl.R.P. 7. The case putforward by the complainant is that he had deposited a total sum of Rs.2,76,000/- in the first accused company at different occasions and he had also subscribed two kuries conducted by the first accused company. According to the complainant he had paid all the instalments. Thus according to the complainant a total sum of Rs.3,51,000/- is due from the accused company and towards the discharge of the said liability, the accuced issued Ext.P1 cheque in question, which when presented for encashment was dishonoured on the ground of funds insufficient. On the other hand, the contention raised by CRL.R.P 2415/10 -:6:- the accused is to the effect that A1 company which is a private financial institution was running in loss and the depositors formed a committee and they themselves have acted as liquidators of the company and the committee members ransacked the company office and looted all the valuable documents and money from the company. Thus on the basis of the cheque leaves so obtained and misutilizing the same, the present case was filed. During the trial, from the side of the complainant, PW1 was examined and Exts.P1 to P9 documents were produced. But from the side of the defence, though no documents was produced, 11 witnesses were examined as DWs 1 to 11. According to the revision petitioners, the findings of the trial court was incorrect, and illegal, and they preferred appeal before the appellate court. It is the above appeal disposed of without hearing the revision petitioners. Even though the appellate court is correct in holding that the appellant has not appeared and prosecuted the appeal in spite of the proper notice, it is a fact that the appeal was disposed of in the absence of the CRL.R.P 2415/10 -:7:- appellants or their counsel. It goes without saying that in the appeal in continuation of trial, both the parties will get an opportunity to reappreciate the evidence and materials on record and to appraise the appellate court their grounds, either against the findings of the trial court or in favour of the same. But in the present case, the appellants or their counsel was absent, and they could not appraise the appellate court their defence properly. In the light of the specific plea taken during the trial, and the materials and evidence on record, I am of the view that it is only just and proper to remand the matter to the appellate court for a fresh hearing and disposal of the matter, so that, the grievance of the revision petitioners that the appeal was disposed of behind their back and without hearing them, will get redressed and such a course will save the interest of justice. 8. In the result, this Crl.R.P. is disposed of setting aside the judgment of the appellate court and remitting the matter back to the appellate court without entering into the merits or demerits of the observation and findings of CRL.R.P 2415/10 -:8:- the appellate court, so as to enable the appellate court to pass fresh orders. Accordingly, the parties are directed to appear before the appellate court on 19.11.10 on which date the appellate court is directed to restore the appeal on file and to a hear the matter on merit and dispose of the same in accordance with law after affording sufficient opportunities to the parties. This Crl.R.P. is disposed of accordingly. V.K.MOHANAN, JUDGE kvm/-