IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE N.K.BALAKRISHNAN TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 OP(Crl.).No. 3610 of 2011(Q) --------------------------------------- [CRL.A.260/2009 OF ADDITIONAL SESSIONS COURT, PATHANAMTHITTA] .................... PETITIONER: ------------------- K.KAMARUDEEN, S/O.LATE KAREEM RAWTHER, POOVAKKATTUMANNIL,VALANCHUZHI, PATHANAMTHITTA. BY ADV. SRI.S.SHANAVAS KHAN. RESPONDENTS: ------------------------ 1. THE KERALA STATE CO-OPERATIVE BANK LTD; PATHANAMTHITTA BRANCH, REPRESENTED BY ITS MANAGER VENUGOPALAN POTTI, KURIYADATHU MADOM,NAGAROOR P.O., KILIMANOOR,TRIVANDRUM - 695 001. 2. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT. S. HYMA. THIS OP (CRIMINAL) HAVING COME UP FOR ADMISSION ON 08/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.(CRL.).NO.3610/2011-Q: APPENDIX PETITIONER'S EXHIBITS:- EXT.P1: TRUE COPY OF THE JUDGMENT DATED 9/10/2009 IN S.T.NO.520/08 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ` PATHANAMTHITTA EXT.P2: TRUE COPY OF THE ORDER IN CRL.M.P NO.1436/09 IN CRL.APPEAL NO.260/09 OF THE COURT OF ADDITIONAL SESSIONS JUDGE,PATHANAMTHITTA EXT.P3: TRUE COPY OF NOTICE ISSUED FROM THE OFFICE OF THE COURT OF ADDITIONAL DISTRICT AND SESSIONS JUDGE,FAST TRACK COURT-1 PATHANAMTHITTA EXT.P4: TRUE COPY OF ORDER DATED 25/10/2011 IN O.P.(CRL.) NO.3460/2011 OF THIS HON'BLE COURT. RESPONDENTS' EXHIBITS:- NIL. //TRUE COPY// P.A. TO JUDGE Prv. N.K. BALAKRISHNAN, J. ------------------------------------------ O.P.(Crl.) No: 3610 OF 2011 (Q) ------------------------------------------ Dated this the 8th day of November, 2011 J U D G M E N T The petitioner is the appellant in Criminal Appeal No:260/09 which is now pending before the Additional Sessions Judge, Fast Track Court-I, Pathanamthitta. As per Annexure 3 it is revealed that the case was posted to 28.10.2011 for hearing. The learned counsel for the petitioner submits that the counsel, who was appearing for the appellant, could not be present in Court. He was represented by another counsel. The learned counsel narrated the reasons for his absence. It is seen that the learned Additional Sessions Judge passed an Order issuing Non Bailable Warrant to the accused/appellant and registered M.C. No: 65/2011 against O.P.(Crl.) No: 3610 OF 2011 (Q) 2 the sureties of the accused/appellant. It is not known what necessitated the presence of the appellant before the learned Sessions Judge on the date when the appeal was posted for hearing. It is also not known how action under section 446 of CrPC should be initiated when the case was only pending consideration before the appellate Court. Learned counsel for the petitioner brought to my notice another instance, where also the learned Additional Sessions Judge adopted the same procedure. The Order passed by the Additional Sessions Judge is illegal and is hence set aside. The learned Additional Sessions Judge can dispose of the appeal on merits. If it is a case where grave offence is involved, certainly notice may have to be issued to the appellant, if his counsel does not turn up for hearing. This is only an appeal challenging conviction and sentence O.P.(Crl.) No: 3610 OF 2011 (Q) 3 passed under section 138 of N.I. Act. Physical presence of the appellant is not necessary for hearing the appeal. Therefore, the Order, stated to have been, passed by the learned Additional Sessions Judge, Fast Track Court-I, dated 28.10.2011 will stand quashed. The learned Judge will hear the appeal and dispose it of in accordance with law. N.K. BALAKRISHNAN, JUDGE jjj