Thirupathy v. The Public Prosecutor

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 06.10.2015 Coram THE HONOURABLE MR. JUSTICE B. RAJENDRAN Criminal Revision Case No. 1361 of 2012 Thirupathy

...Petitioner

Versus

1. The State represented by The Public Prosecutor

2. Mr.Nazar

...Respondents

Criminal Revision Case filed under Section 397 and 401 of Cr.P.C. to call for the records and set aside the conviction and sentence confirmed in the judgment dated 11.10.2012 by the Hon`ble III Additional District and Sessions Judge, Coimbatore in Criminal Appeal No.200 of 2012 preferred against C.C.No.398 of 2011 on the file of the learned Judicial Magistrate, Fast Track Court at Magisterial Level- II, Coimbatore. For Petitioner :

Mr. Mohana Sundaram For Respondent 1 :

Mr.V.Arul Government Advocate For Respondent 2 :

Mr.C.Ramkumar

ORDER

The petitioner stood charged for the offences punishable under Section 138 of the Negotiable Instrument Act and tried before the learned Fast Track Court (Magisterial Level- II) Coimbatore. Ultimately, after trial, the petitioner was convicted for the offences under Section 138 of the Negotiable Instrument Act and sentenced to undergo three months simple imprisonment and to pay a fine of Rs.2000/-, in default, to undergo one month simple imprisonment for the offence under Section 138 of the Negotiable Instrument Act. Questioning the correctness of the order of conviction and sentence imposed on him, the petitioner has filed Crl.A. No. 200 of 2012 before the learned III Additional District and Sessions Judge, Coimbatore,

and by judgment dated 11.10.2012, the appellate court dismissed the appeal for default without assigning any reasons on merits. 2.

The brief facts of the case as could be unfolded from the materials on record, is that the accused borrowed Rs.2.50 lacs on 24.9.2009 from the complainant and agreed to repay with interest at 24% per annum. To discharge the said debt, the accused issued a cheque dated 28.10.2009 for Rs.2.50 lacs. The said cheque was dishonored for the reason funds insufficient as on 31.10.2009. A legal notice was issued on 06.11.2009. Even thereafter, the accused has not repaid the loan amount. Therefore, the complaint has been filed.

3. The learned counsel for the petitioner submitted that the appellate Court, without giving an opportunity to the petitioner, has dismissed the appeal for non-prosecution by judgment dated 11.10.2012, which is per se illegal and contrary to the judgment of the Hon`ble Supreme Court.

4. The learned counsel for the respondent submitted that the petitioner was regularly absent. On 11.10.2015 also, the petitioner was absent and hence, it was passed over and called at 12.45. Even at 12.45 p.m, the petitioner was not present. Therefore, the appellate Court has rightly dismissed the appeal.

5. Heard the learned counsel on either side and perused the materials available on record.

6. According to the petitioner, since he could not appear before the court on 11.10.2011, the trial court dismissed the appeal for non prosecution, which is not permissible in law and that too, without giving an opportunity to the petitioner to put-forth his case.

7. Admittedly, in the present case, the appellate Court has dismissed the appeal for default in one line without assigning any reasons. As per the judgment of the Hon''ble Apex Court reported in (2013) 3 SCC 721 [K.S.Panduranga vs. State of Karnataka], if the petitioner do not appear, there is no necessity for the Court, which is hearing the matter, to issue warrant for special notice or appoint any Amicus Curiae to argue the matter on behalf of the petitioner. The Court is empowered to deal with the matter on merits and dispose of the same and not on the ground of non prosecution.

8. But in the case on hand, the Court below, without going into the merits of the case, has dismissed the appeal only on the ground of non appearance of the petitioner, which is contrary to the proposition laid down by the Hon`ble Supreme Court in the case cited supra. The first appellate Court has

got every right to dispose of the case on merits. Since the appellate Court has dismissed the appeal for non prosecution, I am of the view that this matter requires consideration on merits. Therefore, without expressing any opinion on merits of the case, this matter is remitted to the appellate Court for fresh consideration. In view of the same, the judgment passed by the learned III Additional District and Sessions Judge, Coimbatore in C.A.No.200 of 2012 is set aside and the matter is remitted back to the appellate Court for fresh consideration. The learned III Additional District and Sessions Judge, Coimbatore, shall rehear the matter and pass appropriate orders on merits, as expeditiously as possible, preferably within a period of four months from the date of receipt of a copy of this order. If the advocate or party does not appear, the Appellate Court shall deal with the matter on merits and is empowered to pass orders as per the judgment of the Hon`ble Supreme Court cited supra.

9. In the result, the Criminal Revision Case is allowed. Consequently, connected miscellaneous petition is closed. Sd/- Assistant Registrar(CS-V) //True Copy// Sub Assistant Registrar ga To 1.III Additional District and Sessions Judge, Coimbatore

2. The Judicial Magistrate, Fast Track Court at Magisterial Level - II, Coimbatore District.

3. The Public Prosecutor, High Court, Madras.

1 CC to Mr. Mohana Sundaram, Advocate SR.No. 54367 Crl RC No. 1361 of 2012 MP (CO) PSI (03.11.2015)