## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT :**
**THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN**
**TUESDAY, THE 20TH SEPTEMBER 2011 / 29TH BHADRA 1933**
**Crl.Rev.Pet.No. 1690 of 2011()**
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**CRA.217/2010 OF IST ADDITIONAL SESSIONS COURT, KOZHIKODE ST.294/2009 OF JUDICIAL MAGISTRATE OF FIRST CLASS COURT-II, THAMARASSERY**
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## **REVN. PETITIONER/APPELLANT/ACCUSED**
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**E.T. RAJENDRAN NAIR, AGED 59 YEARS, S/O. RAGHAVAN NAIR, SREENILAYAM, PUTHOOR, KODUVALLY.**
**BY ADV. SRI.T.G.RAJENDRAN**
## **RESPONDENTS/COMPLAINANT & STATE**
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**1. SAKKIR, S/O. SULAIMAN, KUTTIKATTUMMAL, KODIYATHUR, CHERUVADI.**
## **2. STATE OF KERALA,**
- **REPRESENTED BY PUBLIC PROSECUTOR,**
- **HIGH COURT OF KERALA, ERNAKULAM.**
**R2 BY PUBLIC PROSECUTOR MR.M.R. VENUGOPAL.**
**THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 20/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**rs**
## **S.S.SATHEESACHANDRAN, J**
## **-------------------------------------Crl.R.P No.1690 OF 2011**
## **----------------------------------------Dated this the 20[th] day of September 2011**
## **ORDER**
Revision is by the accused convicted of the offence under Section 138 of the Negotiable Instruments Act (for short, NI Act), concurrently, by the two inferior courts. Negativing his plea of not guilty, the learned Magistrate, on his conviction, has sentenced him to undergo simple imprisonment for three months and to pay a fine of `.1,00,000/- with default term of simple imprisonment for two months. In appeal, affirming the conviction, the learned Sessions Judge modified the sentence limiting it to one of fine, imposing the cheque amount as the quantum thereof, with default term of simple imprisonment for three months. Feeling aggrieved, the accused has preferred this revision.
2. Though notice issued in the revision has been served on the 1[st] respondent/complainant, he has elected to remain absent. I heard the learned counsel for the revision petitioner/accused.
3. Complaint was presented through a power of attorney and, later, that power of attorney of the complainant was examined as PW1 in the case. After recording the evidence of the power of attorney in part, as it was found detrimental to the case advanced in the complaint, according to the counsel, the complainant gave up that witness and got himself examined as PW2 in the case. Procedure adopted by the learned
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Magistrate in altering complainant to give up PW1, the power of attorney, examined on his behalf without even providing opportunity to the accused to have his cross examination, and also proceeding with the examination of PW2, the complainant, according to the counsel, was grossly irregular and had caused prejudice to the accused. The learned Magistrate, discarding the evidence of PW1, appreciated the merit of the complainant's case on his evidence as PW2, and the other materials tendered, to found the conviction against the accused, according to the counsel. Conviction entered was assailed by the accused preferring an appeal, but, that appeal had been disposed by the learned Sessions Judge, according to the counsel, without providing an opportunity to the appellant to address arguments on merits of his appeal. Learned counsel for the appellant referred to the statement made in the judgment indicating that when the appeal was taken up for consideration there was no representation for the appellant and, thereupon, after perusing the records and hearing the arguments of the respondent/complainant it had been disposed on merits. The appellate court, at any rate, in disposing the appeal without hearing the appellant's counsel and further not engaging and seeking the assistance of a counsel on his behalf, according to the counsel, has committed grave irregularity, and as such, setting aside the judgment rendered by
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the appellate court, further opportunity has to be provided for rehearing of the appeal, is the submission of the counsel.
4. Going through the judgments rendered by the learned Magistrate and also the learned Sessions Judge, I am unable to accede to the request made by the learned counsel for the accused for remission of the case to the lower appellate court for further hearing. The irregularity, if any, committed by the Magistrate, even assuming that there was such irregularity in the proceedings conducted over the complaint, unless it has resulted in causing failure of justice, with no such case made out in the present case, is not a ground for interfering with the conviction entered against the accused, concurrently, by the courts below. Further more, though the power of attorney of the complainant was examined as PW1 at the first instance and later he was dispensed with, the learned Magistrate has not relied on any part of his evidence to found a conviction against the accused. Once a witness is examined, whether he be the power of attorney or otherwise, the opposite party should be given an opportunity to cross examine him. That has not been followed, but, the witness has been dispensed with, can cause prejudice to the opposite party only where the evidence of that witness has been relied to enter any adverse decision. That is not the case here. On the evidence let in by the complainant and also the
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materials produced, the offence imputed over the dishonoured cheque, which has been proved as having been issued by the accused in discharge of a debt or liability, conviction was entered against him. So much so, there is no merit in the challenge mooted with regard to the irregularity in the procedure by the Magistrate in dispensing PW1, the power of attorney of the complainant. As regards the disposal of the appeal by the lower appellate court, without hearing the appellant's counsel, it is seen, as from the statement made in the judgment of the learned Sessions Judge, there was no representation for the appellant continuously indicating that there was no effective representation of the appellant after preferring the appeal for its prosecution. Still the learned Sessions Judge, after hearing the complainant's counsel, and also perusing the records of the case, has disposed the appeal on its merits. The learned counsel for the revision petitioner relying on “Harjinder Singh v State of Panjab” ((2011) 2 SCC(Crl) 148) has urged that even in the circumstance indicated as above it was appropriate and more advisable for the appellate court to appoint a counsel on behalf of the appellant to address arguments on the merits of the appeal. The reported decision would indicate it was a case where the appellant was in jail and his appeal was disposed of without hearing his counsel. Having regard to the facts involved in the case and taking note of the
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law laid down by the apex court in “Bani Singh v State of Uttar Pradesh” (1996(4) SCC 720), it was held that a further opportunity has to be provided to the appellant in the case for hearing of his appeal. The decision also would indicate that if the lawyer for the appellant is absent and if the court deems fit, it would be appropriate to appoint a lawyer on State expense to assist the appellant. However, it is to be noted that having regard to Section 386 of the Code of Criminal Procedure that a disposal of the appeal on merits after perusing the records even in a case where the appellant remains absent for any reason, whatsoever, is not interdicted by law nor is there any prohibition from doing so. But, it is only advisable and appropriate where counsel for the appellant remains absent, to issue a notice to the appellant or appoint another counsel to address arguments on merits of the appeal, if necessary, as state brief. But, in the given facts of the case, as I find that challenge against the conviction is more or less limited to the irregularity imputed in the proceedings conducted by the Magistrate and where conviction of the accused is founded on unimpeachable legal evidence, providing of opportunity afresh by rehearing of the appeal would serve no purpose, but, only extend the period of litigation. So much so, I find that rehearing of the appeal remitting the case after setting aside the judgment of the lower appellate court in the facts and circumstances of
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the case is not at all called for. That too where the revision petitioner/accused has not shown any sustainable ground other than of irregularity in the proceedings of the Magistrate, which is shown to be meritless and hardly sufficient to assail the conviction.
5. As already indicated conviction of the accused for the offence under Section 138 of the NI Act, concurrently entered by the two courts below is founded on unimpeachable legal evidence. So far as the sentence imposed also, the learned Sessions Judge, in appeal, has shown maximum leniency by setting aside the substantive term of imprisonment limiting it to one of fine alone with default term of imprisonment. So much so, on the question of sentence also no modification is called for.
6. At this stage, the learned counsel for the accused pleaded for a period of three months to pay off the fine awarded, submitting that at present the accused is facing severe financial difficulties. Having regard to the submissions made, some more time for payment as indicated hereunder is provided.
7. Affirming the conviction and sentence imposed against the accused, two months time from today is granted to the accused to pay the fine imposed and, thus, avoid the default term of imprisonment. The learned Magistrate shall keep in abeyance the execution of sentence
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imposed against the accused for the period as above, granted for payment. In default of remittance of fine within the period as fixed above, the learned Magistrate shall execute the sentence taking appropriate steps in accordance with law.
Revision is disposed of.
Sd/-
vdv
**S.S.SATHEESACHANDRAN, JUDGE**
//True Copy//
P.A to Judge
