IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 8TH OCTOBER 2010 / 16TH ASWINA 1932 Crl.Rev.Pet.No. 2963 of 2010() ------------------------------ CRA.459/2009 of ADDL.SESSIONS COURT,-I, MAVELIKKARA CC.366/2007 of JUDL.FIRST CLASS MAGISTRATE COURT,KAYAMKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED: ----------------------------------------------------------------------- MAHADEVAN, ATTENDER, OFFICE OF THE DEPUTY DIRECTOR OF EDUCATION, ALAPPUZHA. BY ADVS. SRI.VINCENT JOSEPH, SRI.M.R.ARUN KUMAR. RESPONDENT(S): RESPONDENTS/COMPLAINANT & STATE: ----------------------------------------------------------------------------------------- 1. PARAMESWARAN, S/O.NARAYANAN, MURALI NIVAS, PATHIYOOR P.O. 2. THE STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM - 31. R2 BY PUBLIC PROSECUTOR SRI. V. TEKCHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 08/10/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss V.K.MOHANAN, J. - - - - - - - - - - - - - - - - - Crl. R.P. No. 2963 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8 th day of October, 2010. J U D G M E N T The accused in a prosecution for an offence u/s.138 of Negotiable Instruments Act is the revision petitioner, as he is aggrieved by the order of conviction and sentence imposed by the courts below. 2. The case of the complainant is that the accused/revision petitioner borrowed a sum of Rs.52,500/- (Rupees Fifty two thousand five hundred only) from the complainant and towards the discharge of the debt, he issued a cheque dated 05.05.2007 for a sum of Rs.52,500/-, which when presented for encashment was dishonoured for want of sufficient fund and the cheque amount was not repaid inspite of a formal demand notice and thus the revision petitioner has committed the offence punishable u/s.138 of Negotiable Instruments Act. With the said allegation, the complainant approached the Court of Judicial Crl. R.P. No. 2963/2010 2 Ist Class Magistrate, Kayamkulam by filing a formal complaint, upon which cognizance was taken u/s.138 of Negotiable Instruments Act and instituted C.C.No.366/2007. During the trial of the case PWs 1 to 3 were examined and Exts.P1 to P9 were marked. No evidence is adduced from the side of the defence. On the basis of the available materials and evidence on record, the trial court has found that the cheque in question was issued by the revision petitioner/accused for the purpose of discharging his debt due to the complainant. Thus accordingly the court found that, the complainant has established the case against the accused/revision petitioner and consequently found that the accused is guilty and thus convicted him u/s.138 of Negotiable Instruments Act. On such conviction, the trial court sentenced the revision petitioner/appellant to undergo simple imprisonment for a period of three months and also directed to pay a compensation of Rs.52,500/- to the complainant u/s.357(3) of Cr.P.C and the default sentence is fixed as one month simple imprisonment. Crl. R.P. No. 2963/2010 3 3. Aggrieved by the above order of conviction and sentence, though the revision petitioner had approached the appellate court, by Judgment dated 08.07.2010 in Crl.Appeal No.459/2009, the Court of The Addl. Sessions Judge-I, Mavelikkara, dismissed the appeal for non- representation for the appellant. 4. I have heard the learned counsel appearing for the revision petitioner and also perused the judgments of the courts below. 5. The counsel for the petitioner submitted that the appellate court has dismissed the appeal without considering the merits, on the ground that there was no representation for the appellant. 6. The appeal being the continuation of the trial, the parties including accused will get an opportunity of re- appreciating the evidence and materials by a superior court but by virtue of the dismissal of the appeal for default, such an opportunity was denied to the appellant/accused. In view of the decisions in [(I.L.R 2006 (4) Kerala Service, Page 596) Jayasankar V.R. v. K.G.Dharman and Crl. R.P. No. 2963/2010 4 another], the appellate court is bound to dispose the appeal on merit even though the appellant or his counsel was absent. It is discernible from the order of the appellate court that the respondent was represented. Therefore, it appears that there is some negligence on the part of the revision petitioner in appearing before the court below and prosecuting the matter on merit. Therefore, one more opportunity can be given to the revision petitioner/appellant to prosecute the appeal on merit, but the same can be done only on cost. In the result, this revision petition is disposed of setting aside the Judgment dated 08.07.2010 of the Court of Addl. Sessions Judge- I in Crl.A.No.459/2009 and remanding the matter to the same court directing the appellate court to restore the appeal and to dispose the same on merit, after hearing both the complainant as well as the accused. Accordingly, the revision petitioner is directed to appear before the appellate court on 26.11.2010 on which date the appellate court is directed to restore the appeal on file, on condition that the revision petitioner paying a sum of Crl. R.P. No. 2963/2010 5 Rs.1,500/- to the respondent/complainant either in person or through the counsel appearing for him in the appellate court and on satisfaction regarding the payment of the amount as directed above, the appellate court is directed to proceed with the appeal and dispose the same on merit. Registry of this court is directed to forward a copy of this order forthwith to the appellate court, so as to enable it to send an advance notice to the complainant as well as his counsel who had appeared in the appellate court, showing the posting of the appeal on 26.11.2010. Criminal revision petition is disposed of accordingly. Sd/- V.K.MOHANAN, Judge. ss/. //True copy// P.A to Judge