IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 14TH OCTOBER 2008 / 22ND ASWINA 1930 Crl.Rev.Pet.No. 56 of 2001() ---------------------------- CRA.172/1999 of ADDL. SESSIONS COURT, ALAPPUZHA CC.298/1995 of JUDL.MAGISTRATE OF FIRST CLASS-I, CHERTHALA .................... REVISION PETITIONER/APPELLANT/ACCUSED: --------------------- JOY, S/O.VARGHESE, CHERUVALLIL HOUSE, KUMBALENGI SOUTH P.O., KOCHI 7, (PROPRIETOR, ST.JOSEPH BOAT REPAIRING YARD, EDAKOCHI P.O.) BY ADV. SRI.TOM JOSE RESPONDENTS/RESPONDENT/COMPLAINANT AND STATE: --------------- 1. K.THILAKAPPAN, KANJIRATHUNKAL HOUSE, C.M.C.22, CHERTHALA P.O. 2. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.PUSHPALATHA M.K. FOR R2 BY ADV.SRI.C.K.SAJEEV FOR R1 SMT.T.B.MINI FOR R1 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/10/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- Crl.R.P. No.56 of 2001 -------------------------------------- Dated this the 14th day of October, 2008. ORDER Revision petitioner, first respondent and their counsel remained absent. There is no representation. Heard Public Prosecutor appearing for second respondent/State. 2. On a complaint preferred by the first respondent, revision petitioner faced trial for offence punishable under Section 138 of the Negotiable Instruments Act (for short, 'the Act'). Case is that revision petitioner purchased 250 cubic feet of timber from first respondent who is a timber merchant and for discharge of that liability he issued Ext.P1, cheque for Rs.71,000/-. Cheque was dishonoured for insufficiency of funds. Revision petitioner was intimated about the dishonour and he was called upon to make payment. He did not pay the amount. Hence, the complaint. Learned magistrate found revision petitioner guilty, convicted and sentenced him to undergo simple imprisonment for three months and pay fine of Rs.72,000/-. It was directed that out of the fine if realised, Rs.71,000/- will be paid to first respondent as compensation. Revision petitioner preferred an appeal. Appeal came up for hearing before learned Additional Sessions Judge on 26.6.2000. Learned Additional Sessions Judge Crl.R.P.No.56/2001 2 observed that appellant was recurrently absent and hence appeal was dismissed for non-prosecution. It is contended in the Revision Petition that the judgments of the courts below are not correct. 3. Even in the absence of revision petitioner and counsel in this Court, I am required to dispose of this revision on merit. It is seen that learned Additional Sessions Judge dismissed the appeal merely for non-prosecution. Honourable Supreme Court has pointed out time and again that a Criminal Appeal cannot be dismissed for default and that whether or not the appellant or counsel are present, Criminal Appeal once admitted has to be disposed of on merit if necessary, by engaging a counsel on behalf of the appellant. In this case since the dismissal of the Criminal Appeal is simply for non-prosecution without referring to the merit of the contentions raised before the appellate court, that dismissal cannot be sustained in the eye of law. Therefore, judgment of the learned Additional Sessions Judge is liable to be set aside and I do so. Resultantly, Revision Petition is allowed in the following lines:- (1) Judgment of learned Additional Sessions Judge, Alappuzha in Criminal Appeal No.172 of 1999 is set aside and the appeal is remitted to that court for decision on merit. It will be open to the parties to appear before the learned Additional Sessions Judge, Alappuzha. Appeal shall be called for hearing in that court on 17.11.2008. Crl.R.P.No.56/2001 3 (2) Bail bond is cancelled. Crl.M.P.No.234 of 2001 shall stand dismissed. THOMAS P.JOSEPH, JUDGE. cks Crl.R.P.No.56/2001 4 Thomas P.Joseph, J. Crl.R.P.No.56 of 2001 ORDER 14th October, 2008