Babu Thomas v. P.B. Shamsuddin and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 Crl.Rev.Pet.No. 1548 of 2011() -----------------------------CRA.510/2010 of ADDL.SESSIONS COURT, (ADHOC-I), ERNAKULAM ST.1454/2008 of THE JUDICIAL FIRST CLASS MAGISTRATE COURT-V, ERNAKULAM .................... REVN. PETITIONER(S): APPELLANT/ACCUSED -------------------------------------- BABU THOMAS, AGED 68 YEARS, CONSULTANT ENGINEER, 58/216, OLD RAILWAY STATION ROAD, ERNAKULAM, ERNAKULAM VILLAGE, KANAYANNUR TALUK. BY ADV. SRI.SANIL KUMAR RESPONDENTS(S): ------------------------ 1. P.B.SHAMSUDDIN, S/O. BAVA, AGED 56 YEARS, POTTAKATTU HOUSE, EDAYAKUNNAM, SOUTH CHITTOOR, ERNAKULAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. R2 BY PUBLIC PROSECUTOR SMT.REKHA.C.NAYAR. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **---------------------------------------Crl.R.P.No. 1548 of 2011** ## **----------------------------------------** Dated this the 23[rd] day of June, 2011 ## **ORDER** The accused in a prosecution for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the N.I.Act') is the revision petitioner as he is mainly aggrieved by the order of the appellate court by which his appeal was dismissed for default. 2. Heard the counsel for the revision petitioner and I have perused the orders of the appellate court as well as the judgment of the trial court in S.T.No.1454 of 2008. 3. Counsel for the petitioner submitted that as per the judgment of the trial court,the petitioner is found guilty under Section 138 of the N.I.Act and he is sentenced to undergo simple imprisonment for one month and also imposed a fine of Rs.3 lakhs and the default sentence of one month and because of the order of the learned Sessions Judge, the revision petitioner has lost his opportunity to convince the learned Sessions Judge regarding his innocence and to Crl.R.PNO.1548 of 2011 :-2-: raise his plea for acquittal. 4. As I indicated earlier,aggrieved by the judgment dated 7.8.2010 in S.T.No.1454 of 2008 of the Judicial First Class Magistrate Court-V, Ernakulam whereby the petitioner stands convicted under Section 138 of the N.I.Act and imposed a sentence of one month simple imprisonment and a fine of Rs.3 lakhs, the petitioner, challenging the same, approached the Sessions Court, Ernakulam by filing Crl.A.No.510 of 2010,but as per the order impugned dated 7.3.2011, the court of Additional Sessions Judge (Adhoc-I), Ernakulam dismissed the for default that there was no appeal stating representation for the appellant and the appellant failed to take appropriate steps by not furnishing sufficient copy of the appeal memorandum. I am unable to sustain the above reasons of the learned Sessions Judge for dismissing the appeal, particularly in the light of the decision of the Apex Court reported in **Md.Sukur Ali** v. **State of Assam** [2011(1) KLT 881 (SC)] wherein the Apex Court has held Crl.R.PNO.1548 of 2011 :-3-: that even in a case where the counsel for the accused does not appear either because of the Counsel's negligence or deliberately,the Court should not decide such criminal case against the accused in the absence of his counsel, instead, the Court should appoint another counsel as ' _amicus curaie_ ' to defend the accused. In the present case, from the submission of the learned counsel, it appears that originally,the counsel for the appellant was represented in the appellate court by another counsel when the case was called. It is also the submission of the learned counsel that at the time of filing the appeal, sufficient number of copies of appeal memorandum and cover etc. were furnished and in spite of those facts,the court below came to a conclusion that the appellant was not represented and no step was taken. 5. However, I am not proposed to go into the merits of those disputed facts. The appeal is the continuation of the trial and at that stage,the accused can get re-appreciated all the evidence and materials Crl.R.PNO.1548 of 2011 :-4-: on record by a superior forum and he can canvass for an acquittal. Thus, as far as the accused is concerned, the appellate court is the superior forum for the accused to raise his plea for acquittal and to prove his innocence and such opportunities cannot be denied merely for the reason that the appellant was not represented. In the light of the above facts and the settled legal position cited supra, I am of the view that the order of the learned Sessions Judge is liable to be set aside and the matter can be remitted back for fresh disposal by the appellate court. In the result,this Criminal Revision Petition is disposed of setting aside the order dated 7.3.2011 of the court of Additional Sessions Judge (Adhoc-I), Ernakulam in Crl.A.No.510 of 2010 and the matter is remitted back to the same court for fresh consideration and for fresh disposal. Accordingly,the petitioner is directed to produce a copy of this order before the appellate court on **25[th] July,2011** on his appearance either in person or through counsel, on Crl.R.PNO.1548 of 2011 **==> picture [22 x 9] intentionally omitted <==** which date the learned Sessions Judge is directed to restore the appeal on file. The revision petitioner is also directed to co-operate with the proceedings of the court below and furnish copy of the appeal memorandum if it is not already furnished and take appropriate steps according to the direction of the appellate court and the appellate court is directed to dispose of the appeal on merit in accordance with the procedure and law. This revision petition is disposed of as above. **V.K.MOHANAN, Judge** MBS/ Crl.R.PNO.1548 of 2011 :-6-: **V.K.MOHANAN, J** . O.P.No. **JUDGMENT** Dated:.. ## Crl.R.PNO.1548 of 2011 :-7-: