Usha Nandakumar v. Gireesh Kumar V. and State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **FRIDAY, THE 3RD DAY OF MARCH 2017/12TH PHALGUNA, 1938** ## **Crl.Rev.Pet.No. 1687 of 2013 ()** **-------------------------------AGAINST THE JUDGMENT IN CRL.A. NO.180/2011 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, KOLLAM DATED 24-05-2013. AGAINST THE JUDGMENT IN CC. NO.445/2007 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, KOLLAM DATED 04-04-2011.** **.....** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** **----------------------------------------------------------------------** **USHA NANDAKUMAR, W/O. LATE NANDAKUMAR, NADANAM, H.NO.166, CHEMMAKKADU P.O, KUZHIYAM, KOLLAM.** ## **BY ADV. SRI.B.MOHANLAL.** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:** **--------------------------------------------------------------------------------------** **1. GIREESH KUMAR. V., S/O. VAMADEVAN, CHAPPRAYIL VEEDU, MARANADU P.O, PARTHANPARA, EZHUKONE, KOLLAM DISTRICT-691 016.** **2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. SRI.AJAYA KUMAR. G R2 BY PUBLIC PROSECUTOR SRI.SAIGI JACOB PALATTY.** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03-03-2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** rs. ## ALEXANDER THOMAS, J. ================== Crl.R.P.No. 1687 of 2013 ================== Dated this the 3[rd] day of March, 2017 O R D E R The petitioner is the accused for offence under Sec.138 of the Negotiable Instruments Act in Calendar Case, C.C.No.445/2007 on the file of the Judicial First Class Magistrate's Court-I, Kollam, instituted on the basis of the complaint filed by the 1[st] respondent herein. The trial court as per the impugned judgment rendered on 4.4.2011 had convicted the petitioner for the abovesaid offence and had sentenced to undergo simple imprisonment for 3 months and to pay compensation of Rs.3.15 lakhs to the complainant under Sec.357(3) of the Cr.P.C. and in default thereof, the accused was sentenced to suffer simple imprisonment for 15 days, etc. Aggrieved thereby, the petitioner had preferred Crl.Appeal No. 180/2011 before the Sessions Court, Kollam. The appellate court concerned (the Court of Addl. Sessions Judge [Adhoc]-II, Kollam), as per the impugned judgment rendered on 24.5.2013 had dismissed the criminal appeal, thus confirming the conviction and sentence. Aggrieved by the concurrent verdicts in the matter of conviction and sentence, the accused has preferred the instant Criminal Revision Petition by taking recourse to the remedies conferred under Sec. 397 read with Sec. 401 of Crl.R.P.1687/13 - : 2 :- the Cr.P.C. 2. Heard Sri.B.Mohan Lal, learned counsel appearing for the revision petitioner accused, Sri.G.Ajaya Kumar, learned counsel appearing for R-1 complainant and Sri.Saigi Jacob Palatty, learned Prosecutor appearing for R-2 State. 3. The gist of the prosecution case is that on 8.5.2006, the petitioner accused had approached the complainant at his residence and had borrowed a sum of Rs.3.15 lakhs and for the said borrowed amount, the accused had issued the instant cheque dated 12.12.2006 for an amount of Rs.3.15 lakhs payable to the complainant. The cheque on presentation through the complainant's collection bank, was dishonoured on the ground of insufficiency of funds. The complainant had sent statutory demand notice, which was received by the accused and since the demanded amount was not paid upto the requisite period, the complainant was constrained to file the instant complaint, which resulted in the trial, etc. 4. Various aspects of the matters and detailed contentions on these aspects, have been addressed by the learned Advocates appearing for the rival parties. One of the grounds urged by Sri.B.Mohan Lal, learned counsel appearing for the revision petitioner accused is that the petitioner had filed Miscellaneous Petition as Criminal Miscellaneous Petition No.1571/2013 before the appellate Sessions Court in the above Crl.R.P.1687/13 - : 3 :- criminal appeal (Crl.Appeal No.180/2011), on 20.12.2012 by praying that, by virtue of the enabling powers conferred under Sec.391 of the Cr.P.C., the appellate court may permit the accused (the appellant therein) to adduce additional evidence by examining P.W-2. That the said criminal miscellaneous petition was taken up for hearing and orders. That the case was initially alloted to II Addl. Sessions Judge, Kollam, and while the abovesaid miscellaneous petition was posted for hearing, the case was transferred to the Addl. Sessions Judge, (Adhoc)-II, Kollam, as per the order of the Principal Sessions Court on 9.4.2013. Later the said miscellaneous petition was taken up for hearing on 18.5.2013, on which day it was heard and the appellate court had adjourned the case to 24.5.2013 for rendering orders on the said Crl.M.P. On 18.5.2013, there was no order that the main appeal itself will be taken up for hearing on 24.5.2013, etc. However, on 24.5.2013 the learned Sessions Judge dismissed not only the Crl.M.P., but had also dismissed the main appeal and that the appellant was not granted a reasonable opportunity of being heard for the consideration of the main appeal, etc. These aspects are averred in para 6 as well as Ground “B” of the memorandum of the revision petition. Accordingly, it is argued by the learned counsel appearing for the revision petitioner that the abovesaid impugned dismissal of the main appeal without a reasonable opportunity for the petitioner would be patently violative of the basic cannons of criminal jurisprudence, as Crl.R.P.1687/13 - : 4 :- reflected in the judgments of the Apex Court as in Md.Sukuar Ali v. State of Assam, reported in 2011(1) KLT 881, Paduranga V. State of Karnataka reported in 2013(1) KLT 874 and of this Court in Kusuman N.Kutty v. Registrar of Companies, reported in 2013(2) KLT SN 132 Case No.167. In the light of the abovesaid submissions, this Court is considering only this aspect in disposal of this Criminal Revision Petition. 5. The learned counsel for the revision petitioner has made available certified copy of B diary proceedings on 18.5.2013 as well as the certified copy of the order sheet in Crl.Appeal No.180/2011 from 9.4.2013 to 24.5.2013. The copy of the order sheet for the abovesaid period 9.4.2013 to 24.5.2103 reads as follows: - “9/4/2013 Judge is on training. No Sitting. Notified to 27/04/2013. - 27/4/2013 For hearing 18/5/2013. - 18/5/2013 Heard. Crl.M.P. for Orders 24/5/2013. - 24/5/2013 Appeal Dismissed (Vide separate Order).” B Diary proceedings for 18.5.2014 in respect of the abovesaid Crl.Appeal No. 180/2011 reads as follows: “ xxx xxx xxx Crl.A.18/2011 - Crl.M.P. Heard. For orders to 24.5.2013.” From a combined reading of B diary proceedings for 18.5.2013 as well as the order sheet from 9.4.2013 to to 24.5.12013 would show that on 9.4.2013, the learned Judge was on training and hence notified to Crl.R.P.1687/13 - : 5 :- 27.4.2013. On 27.4.2013, the case has been posted for hearing to 18.5.2013. Though it is not stated in the order sheet as to whether or not the matter that was adjourned on 27.4.2013 to 18.5.2013 for hearing was the criminal miscellaneous petition or the main appeal, it may be that on 27.4.2013, the appellate court could have posted the appeal for hearing on 18.5.2013 or that not only the appeal but also the Crl.M.P. was also posted for hearing. Whatever that be, the above records further show that on 18.5.2013, it is noted as “ _Heard Crl.M.P. for orders 24.5.2013_ ”. The copy of the order sheet by itself does not make it very clear as to whether what was heard on 18.5.2013, was not only the Crl.M.P., but also the appeal as well. But that aspect is fully clear by the corresponding entry for 18.5.2013 in the B. diary proceedings, wherein it is noted as “ _Crl.M.P heard. For orders to 24.5.2013_ ” Therefore, what was heard on 18.5.2015 was only the Crl.M.P. and not the main appeal and after hearing Crl.M.P. the said matter was posted on 18.5.2015 to 24.5.2013 for pronouncement of orders in the Crl.M.P. The order sheet further shows that on 24.5.2013, the noting is “ _Appeal dismissed. (Vide separate order)_ ”. Whether the appeal was heard on 24.5.2013 is not really clear from the endorsement in the order sheet. Presumably what is referred to as “vide separate order” therein would be that the main appellate judgment was pronounced and a separate order in Crl.M.P. was also passed. Records show that both the main appeal as well as Crl.M.P. were Crl.R.P.1687/13 - : 6 :- dismissed on 24.5.2013. The petitioner has produced certified copy of the judgment in the criminal appeal as well as the certified copy of the order in the Crl.M.P., which show that the appeal as well as Crl.M.P. have been separately dismissed on 24.5.2013. This Court is not now entering into any finding on the submissions made by the revision petitioner that on 24.5.2013, the appellant was not heard before the dismissal of the appeal. This is because, even if it is assumed that the appeal was heard and dismissed on 24.5.2013, one thing that is striking to the attention of this Court from these papers is that though the appellate court on 27.4.2013 could have adjourned the main appeal to 18.5.2013 for hearing, the records very clearly show that on 18.5.2013 what was heard was only the Crl.M.P., which was ordered to be adjourned for orders to be pronounced on 24.5.2013. There is no indication in that order that the court has made it clear to both the parties on 18.5.2013 that the main appeal also will be taken up for hearing on 24.5.2013. Therefore, on 24.5.2013, the appellant's counsel may not have been prepared for the final hearing of the main appeal, which was taken up on that day, as what was notified on the previous day (18.5.2013) was that only the Crl.M.P. will stand posted to 24.5.2013 for pronouncement of orders therein. Therefore, without going into the correctness or otherwise of the submissions of the revision petitioner that the appeal was dismissed on 24.5.2013 without conducting the hearing on the appeal on that day, this Crl.R.P.1687/13 - : 7 :- Court is of the opinion that the records show that the decision making process is not in accordance with the principles of natural justice. Right to a statutory appeal for a criminal convict is sacrosanct and precious right conferred on him by law. Even if it is not a constitutional right, it has to be treated with all due deference so as to instill the maximum the confidence of the public in the rule of law based adjudicatory system. In the light of these aspects, this Court is of the clear and firm view that there has been violation of principles of natural justice in the decision making process, which led to the dismissal of the impugned appeal. This Court has not pronounced anything on the merits of the rival contentions for those are all matters, which are best left to be relegated to the realm of the appellate adjudicatory process. In the light of aspects, the impugned appellate judgment rendered on 24.5.2013 in Crl.Appeal No. 180/2011 by the Addl. Sessions Judge (Adhoc)-II, Kollam, will stand set aside and the appeal will stand restored to file. The appellate court will ensure that both sides are given reasonable opportunity of being and that the appeal is finally disposed of without much delay. All efforts will be taken by the appellate court concerned to ensure that the appeal is finally disposed of at least within a period of 4 months from the date of appearance of the parties. The learned counsel for the revision petitioner and the learned counsel for the complainant appearing before the Sessions Court concerned will appear before the appellate court Crl.R.P.1687/13 - : 8 :- concerned at 11 a.m. on 1.4.2017 and thereupon, the court may fix up a suitable date for hearing, taking into account convenience of both sides and then proceed with the appeal in accordance with law. With these observations and directions, the aforecaptioned Revision Petition stands finally disposed of. Sd/sdk+ ALEXANDER THOMAS, JUDGE ///True Copy/// P.S. to Judge