High Court of KeralaSingle Judge2011-12-23Criminal Revision Petition disposed of; remande...

V.S. Johnkutty v. UCO Bank and State of Kerala

Case / Petition Number:Crl.R.P.No.3074 of 2011

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: V.K. Mohanan
Judgment Date: 2011-12-23
Court Decision / Holding: Criminal Revision Petition disposed of; the judgment dated 31.10.2011 in Crl.A. No.119 of 2010 of the Additional Sessions Judge, Alappuzha is set aside and the matter is remanded to the lower appellate court for fresh disposal after giving opportunity to both sides. The petitioner is directed to deposit Rs. 500 in the lower appellate court within one month from today; on depositing and appearing on 2 February 2012, the appellate court shall proceed to hear the appeal in accordance with law and dispose of it after hearing both sides. The deposited amount shall be paid to the State Exchequer. If the petitioner fails to comply, the order will stand vacated and the appellate judgment will revive.
Final Disposition: Criminal Revision Petition disposed of; remanded to lower appellate court with conditions as stated above.

Parties to the Case

Appellants / Petitioners

V.S. Johnkutty

Respondents

UCO Bank, Alleppey
State of Kerala represented by Public Prosecutor

Legal Representation & Advocates

Counsels for Petitioners

• D. Sunilkumar
• K. C. Sudheer

Counsels for Respondents

• Public Prosecutor

Case Synopsis & Summary

This is a criminal revision petition by V.S. Johnkutty challenging a conviction under Section 138 of the Negotiable Instruments Act, 1881, arising from a loan for which his wife was borrower and he stood as guarantor. A money suit (O.S. No. 53 of 2002) before the Sub Court, Alappuzha, was decreed in favor of the complainant bank. Subsequently, the accused issued a cheque for Rs. 2,50,000 towards discharge of the liability; the cheque was dishonoured on presentation and notice was served, giving rise to the Section 138 NI Act prosecution. At trial, PW1 testified; Exts. P1–P9 were marked; the defence did not adduce evidence. The trial court convicted under Section 138 NI Act. The Additional Sessions Judge, Alappuzha, on 31.10.2011, dismissed the appeal with a modification in the sentence. On revision, the High Court found fault with the appellate process, noting that the appeal proceeded without proper hearing or representation for the accused, citing Md. Sukur Ali v. State of Assam to emphasize that criminal cases should not be decided in the absence of the accused or his counsel and that appeals should not be dismissed for default. The High Court remanded the matter to the lower appellate court with conditions, including a deposit of Rs. 500 and appearance on 2 February 2012, for fresh disposal after hearing both sides.

Provisions of Law Cited

Section 138 of the Negotiable Instruments Act, 1881

Legal Doctrines & Maxims

Criminal cases and appeals should not be decided in the absence of the accused or his counsel (Md. Sukur Ali v. State of Assam)
Appeal shall not be dismissed for default; right to hearing must be ensured

Submissions & Arguments

Contentions of Appellants / Petitioners

Counsel for the petitioner argued that the appellate court disposed of the appeal without giving the accused a proper hearing; there was no representation at the time of hearing; the judgment records show a lack of opportunity to advance contentions; following the Supreme Court in Md. Sukur Ali v. State of Assam, criminal cases should not be decided without the accused or his counsel. The petitioner sought remand for a fresh hearing to enable proper argument and a just appraisal of the evidence, with the court ensuring a fair opportunity for both sides. The High Court acknowledged negligence in prosecuting the appeal but held remand on terms may be appropriate to balance interests and ensure due process.

Contentions of Respondents

The respondents contended that the conviction under Section 138 NI Act is legally sound, supported by PW1 and Exts. P1–P9, and that the appellate court’s decision, though with procedural observations, did not prejudice the case. They argued that remand to a lower court could cause delay and that the appellant had had opportunity to be heard; they urged enforcing the deposit condition to preserve proceedings and to avoid trivial delays, arguing that the appellate court can decide the matter fairly upon remand.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Md. Sukur Ali v. State of Assam	2011 Crl.L.J., 1690	Positive	Apex Court held that criminal cases and appeals should not be decided in the absence of the accused or his counsel; the default dismissal rule does not apply when the accused is not properly represented.

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Extracted Judgment Text

Exact text extracted from official judgment records.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 23RD DECEMBER, 2011 / 2ND POUSHA, 1933 Crl.Rev.Pet.No. 3074 of 2011 ------------------------------------(CRA.119/2010 of ADDL. SESSIONS COURT, ALAPPUZHA CC.191/2009 of JUDL.MAGISTRATE OF FIRST CLASS-II(MOBILE),ALAPPUZHA) .................... REVN. PETITIONER(S)/APPELLANT/ACCUSED: ----------------------------------------------------------------V.S.JOHNKUTTY, S/O.MUSTER, VELIYIL HOUSE, KATTOOR.P.O., KATTOOR MURI, KALAVOOR VILLAGE, ALAPPUZHA. BY ADV. SRI.D.SUNILKUMAR SRI.K.C.SUDHEER RESPONDENTS(S)/COMPLAINANT AND STATE: ------------------------------------------------------------------- 1. UCO BANK, CULLEN ROAD, ALLEPPEY, REP.BY ITS MANAGER K.RAJ MOHAN, S/O.KESAVAN NAIR, MANAGER, UCO BANK, ALLEPPEY - 688 001. 2. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031. R2 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 23/12/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **V.K.MOHANAN, J.** ## **----------------------------------------** ## **Crl.R.P.No. 3074 of 2011** **----------------------------------------** Dated this the 23[rd] day of December, 2011 ## **O R D E R** The accused in a prosecution for the offence punishable under Section 138 of the Negotiable Instruments Act,1881 (for short 'the N.I.Act') is the revision petitioner as he is aggrieved by the conviction and sentence imposed against him. 2. The case of the complainant is that the wife of the accused availed of a loan for which the accused stood as guarantor and for the realisation of the said amount, O.S.No.53 of 2002 was filed before the Sub Court, Alppuzha which was decreed in favour of the plaintiff, which is the complainant and thereafter, the accused approached the complainant and issued cheque for `.2,50,000/- towards the discharge of the said liability and that cheque was dishonoured when presented for encashment and the amount was not paid in spite of statutory notice and thereby the accused has committed the above offence. Crl.R.P.No.3074 of 2011 :-2-: 3. During the trial, PW1 was examined from the side of the complainant and Exts.P1 to P9 were marked. No evidence is adduced from the side of the defence. Finally, the trial court found in favour of the complainant and convicted the accused for the offence under Section 138 of the N.I.Act. 4. Aggrieved by the above conviction and sentence, the accused, who is the revision petitioner herein, preferred an appeal before the Sessions Court, Alappuzha and by judgment dated 31.10.2011 in Crl.A.No.119 of 2010, the court of Additional Sessions Judge, Alappuzha dismissed the appeal confirming the conviction, but subject to certain modification with respect to the sentence. It is the above conviction and sentence challenged in this appeal. 5. Though learned counsel for the petitioner advanced several arguments on facts and on the basis of the evidence on record, I am not proposed to consider the same at this stage, since the appeal was disposed of without a proper hearing of the revision petitioner. In Crl.R.P.No.3074 of 2011 :-3-: paragraph 6 of the judgment of the appellate court, it is specifically stated that at the time of the argument, there was no representation for the appellant and the respondent was heard. According to me, the above approach of the appellate court is not proper. From the order impugned, nothing is discernible, particularly, any steps taken by the appellate court to ensure the presence of the appellant or his counsel. The Apex Court in the decision reported in _**Md.Sukur Ali**_ v. **State of Assam** (2011 Crl.L.J., 1690) held that criminal case of the trial, appeal revision should not be decided against the accused in the absence of his counsel. The Apex Court time and again held that the appeal shall not be dismissed for default. Though from the impugned judgment of the appellate court, it appears that the same is not dismissed for default, but virtually, there is no reference to the contentions advanced by the appellant and appreciation of the same on the basis of the evidence and materials on record. Therefore, according to me, instead of entering into any finding on merit on the basis of the contentions Crl.R.P.No.3074 of 2011 :-4-: advanced by the learned counsel for the petitioner, it is only just and proper to remand the matter to the appellate court to dispose of the appeal afresh after giving an opportunity to the revision petitioner as well as the first respondent/complainant. 6. But, it is relevant to note that in the revision petition, no ground is stated for the absence of the revision petitioner or his counsel in the appellate court at the time of hearing of the appeal. Thus, it can be safely concluded that the revision petitioner was negligent in prosecuting the appeal in the lower appellate court properly. Therefore, further opportunity can be given to the revision petitioner only on terms, especially when both the courts below have found in favour of the complainant. In the result, this Criminal Revision Petition is disposed of setting aside the judgment dated 31.10.2011 in Crl.A.No.119 of 2010 of the court of Additional Sessions Judge, Alappuzha and remanded the matter back to the lower appellate court for fresh consideration Crl.R.P.No.3074 of 2011 :-5-: and disposal on condition that the petitioner/accused deposits a sum of `.500/- (Rupees Five Hundred only) in the lower appellate court within one month from today. Accordingly, the lower appellate court is directed to restore Crl.A.No.119 of 2010 on its file on **2[nd] February,2012** on which date, the revision petitioner or his counsel is directed to appear before the appellate court. On the satisfaction of the appellate court that the revision petitioner deposits the amount within the time granted and appears before the court below either in person or through the counsel, the appellate court is further directed to proceed with the hearing of appeal in accordance with the procedure and law and dispose of the same after hearing both the revision petitioner/accused and the first respondent/complainant. The amount, which would be deposited, shall be paid to the State Exchequer. On the failure of the petitioner in complying with any of the above conditions, this order will stand vacated and the order of the appellate court will revive. Crl.R.P.No.3074 of 2011 :-6-: The Criminal Revision Petition is disposed of as above. **V.K.MOHANAN, Judge** MBS/ Crl.R.P.No.3074 of 2011 :-7-: **V.K.MOHANAN, J** . CRL.A.No. 434 OF 2003 **JUDGMENT** Dated:11.11.2011 ## Crl.R.P.No.3074 of 2011 :-8-: