IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 20TH AUGUST 2010 / 29TH SRAVANA 1932 Crl.Rev.Pet.No. 2546 of 2010() ------------------------------------------- CRA. NO.506/2009 OF THE ADDL. SESSIONS COURT-II, MAVELIKKARA. ST. NO.192/2008 OF THE JUDICIAL FIRST CLASS MAGISTRATE REVN. PETITIONER(S): ---------------------------------- SAJEEV P., AGED 39 YERS,S/O.DAMODARAN PILLAI, VAZHIVILAYIL HOUSE, KURATHIKADU P.O., MAVELIKKARA BY ADV. SRI.B.RENJITHKUMAR RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 2. SHAJI GEORGE, S/O.T.V.GEORGE, VARIKKOLITHARA PUTHEN BUNGLOW, BHARANICAVU SOUTH MURI, KATTANAM, MAVELIKKARA- 690 552. R1 BY GOVT. PLEADER SMT.M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 20/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: tss V.K.MOHANAN, J. ------------------------------- Crl.R.P.No.2546 of 2010 ------------------------------- Dated this the 20th day of August, 2010. O R D E R This revision petition is preferred against the judgment dated 7.10.2009 of the trial court in S.T.No.192/2008 of the Judicial First Class Magistrate Court-II, Mavelikkara, by which the revision petitioner is convicted for the offence punishable u/s.138 of Negotiable Instruments Act and sentenced to undergo simple imprisonment for 3 months and also directed him to pay compensation of Rs.1,02,000/- to the complainant u/s.357(3) of Cr.P.C. and against the judgment dated 4.6.2010 in Crl.A.No.506/09 of the Court of Addl. Sessions-I, Mavelikkara, by which the appeal is dismissed. 2. The learned counsel for the revision petitioner submitted that, the lower appellate court dismissed the appeal for default and there is no decision on merit. In support of the argument of the learned counsel, the counsel very much relied on a decision in Bani Singh Vs. State of U.P. [1996 (2) KLT 424(SC) ] and in Crl.R.P.No.2546 of 2010 2 Samul Philipose Vs. Koshy Thomas [2009(4) KLT 360]. 3. From the facts indicated above, it can be seen that the revision petitioner stand convicted and sentenced by the trial court, which finding of the trial court though challenged in an appeal, there is no re-appreciation of evidence and the question of law involved and accordingly the petitioner approached this court, as he has no other remedy. In the light of the decision relied on by the learned counsel, the appellate court is not expected to dismiss the appeal, preferred by the petitioner, for default. The proceedings in the appellate court, is a continuation of the trial and the convicted person and also the person prosecuting the matter will get an opportunity to advance the arguments and also for re-appreciation of the evidence, at a higher judicial level than the trial court. Therefore, the dismissal of the appeal without going into the merits of the rival contention can not be approved, consequently the appellate court judgment is liable to be set aside. In the result, this revision petition is disposed of directing Crl.R.P.No.2546 of 2010 3 the appellate court to take up the appeal (Crl.A.No.506/09) on file and hear the appeal on merit and dispose the same after affording sufficient opportunity to the contesting parties therein. The revision petitioner or his counsel is directed to appear before the appellate court on 22.9.2010, on which date the appellate court is directed to restore the appeal on file and proceed in accordance with the law and procedure and dispose the same on merit. Coercive steps if any, taken against the revision petitioner shall stand cancelled. It is also made clear that the Bond executed by the revision petitioner before the court below, stand revived. V.K.MOHANAN, Judge. ami/