Kerala High Court
K.Ajayan vs Represented on 19 June, 2012
Author: V.K.Mohanan
Bench: V.K.Mohanan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
THURSDAY, THE 7TH DAY OF FEBRUARY 2013/18TH MAGHA 1934
Crl.Rev.Pet.No. 2070 of 2012 (C)
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AGAINST THE ORDER/JUDGMENT IN CRA.550/2010 of FIRST ADDL.SESSIONS
COURT, TRIVANDRUM DATED 19-06-2012
AGAINST THE ORDER/JUDGMENT IN ST.1869/2007 of J.M.F.C.-IV,
NEYYATTINKARA DATED 19-06-2010
REVISION PETITIONER:ACCUSED:
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K.AJAYAN, AGED 51 YEARS,
S/O.KAMALASANAN, PULLUVILAKATHU VEEDU,
NEAR PETROL PUMP, RC STREET, NEYYATTINKARA.
BY ADV. SRI.R.GOPAN
RESPONDENTS: STATE & COMPLAINANT:
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1.REPRESENTED
STATE OF KERALA,
BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2.REPRESENTED
THIRUVANANTHAPURAM DISTRICT CO-PERATIVE BANK LTD,
BY NEYYATTINKARA BRANCH MANAGER,
S.SUKUMARI
695 001.
R1 BY PUBLIC PROSECUTOR SRI.RAMPRASAD UNNI.T.
THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION
ON 07-02-2013, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
V.K.MOHANAN, J.
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Crl.R.P.No.2070 of 2012
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Dated this the 07th day of February, 2013
ORDER
Challenging the concurrent findings of the court below, the accused in a prosecution for the offence under Section 138 of the N.I. Act preferred this Revision Petition.
2. I have heard Adv.Sri.R.Gopan, learned counsel for the revision petitioner.
3. Connected with the dishonour of cheque for an amount of `23,102/- the respondent herein instituted S.T.No.1869 of 2007 in Judicial Magistrate of the First Class Court-IV, Neyyattinkara alleging offence under Section 138 of the N.I. Act against the accused, which resulted in the conviction of the accused/revision petitioner and accordingly he is sentenced to undergo imprisonment till rising of the court and also sentenced to pay a fine of `24,000/- and default sentence is fixed as Crl.R.P.No.2070/2012 : 2 : two months simple imprisonment. The revision petitioner herein preferred an appeal before the lower appellate court which finally dismissed by the learned Judge of the court of the first Additional Sessions Judge, Thiruvananthapuram by her judgment dated 19/06/2012 in Crl.A.No.550 of 2010 and thus confirmed the conviction and sentence. It is the above finding of the court below and order of conviction and sentence challenged in this revision petition.
4. The counsel for the revision petitioner submitted that the judgment of the lower appellate court is liable to be interfered with in the light of the judgment of the Apex Court reported in Md.Sukur Ali Vs. State of Assam 2011 (1)KHC 760 and this Court in Gopinath Vs. Suresh 2011(2)KHC 878. From paragraph 5 of the judgment, as correctly pointed out by the learned counsel for the petitioner, it is seen that the lower appellate court dismissed the appeal without hearing the revision petitioner/ accused or his counsel, but simply following Crl.R.P.No.2070/2012 : 3 : the decision reported in Bani Singh and others Vs. State of U.P. (AIR 1996 SC 2439).
5. Having regard to the facts and circumstances involved in the case and especially in the light of the fact that the appellate court has disposed the appeal without hearing the accused or his counsel. I am of the view that this revision petition need not retain on the file of this Court and the same can be disposed by remanding the matter back to the lower appellate court for fresh consideration and disposal especially in the light of the decision of the Apex Court reported in Md.Sukur Ali Vs. State of Assam 2011 (1)KHC 760 and this Court in Gopinath Vs. Suresh 2011(2)KHC 878. However, it is relevant to note that from paragraph 5 of the judgment of the appellate court it is crystal clear that several adjournments were given to the revision petitioner/ accused but he failed to make use of that opportunities. Therefore, according to me, further opportunity can be given only on terms.
Crl.R.P.No.2070/2012 : 4 :
In the result, this revision petition is disposed of setting aside the judgment dated 19/06/2012 in Crl.A.No.550 of 2010 of the court of first Additional Sessions Judge, Thiruvananthapuram and the matter is remanded back to the lower appellate court on condition the petitioner depositing a sum of `750/- (Rupees Seven hundred and fifty only) in the lower appellate court within one month from today and accordingly the petitioner is directed to appear before the lower appellate court either in person or through his counsel on 07/03/2013 on which date the appellate court is directed to post the above appeal and on satisfaction of the learned Judge of the lower appellate court that the revision petitioner has deposited `750/-, proceed to hear the appeal and dispose the same in accordance with procedure and law after giving ample opportunities to both the revision petitioner as well as the respondent/ complainant. On depositing the above amount, the same shall be remitted to the State Exchequer. It is made clear that, if there is any failure on Crl.R.P.No.2070/2012 : 5 : the part of the petitioner either in depositing the amount within the time stipulated above or failure in appearing before the lower appellate court on the date fixed for his appearance, this order will stand vacated and consequently the revision petition also stand dismissed. The execution of warrant, if any, pending against the revision petitioner shall be kept in abeyance for a period of one month.
V.K.MOHANAN, JUDGE skj