THE HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
CRL.A.No.33 OF 2016
JUDGMENT:
This appeal under Section 378(4) Cr.P.C., is directed against the judgment dated 26.10.2018 in Crl.A.No.227 of 2014, on the file of the II-Additional Metropolitan Sessions Judge, Hyderabad, wherein and whereby the appellate court had set aside the judgment of the trial court dated 18.02.2014 in C.C.No.626 of 2013 convicting the 1st respondent-accused for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the NI Act') and sentencing him to undergo rigorous imprisonment for the period of six months and to pay a fine of Rs.1,50,000/- to the appellant-complainant in default to suffer simple imprisonment for two months. By the said judgment, the appellate court had acquitted the 1st respondent-complainant.
2. Against the order of appellate court, a criminal revision case lies and this criminal appeal is treated as criminal revision case as filed under Sections 397 and 401 Cr.P.C.
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3. Heard the learned counsel for the revision petitioner- complainant and the learned counsel for the 1st respondent-accused. Perused the record.
4. The parties are referred to as complainant and accused.
5. The complainant filed a complaint under Section 138 of the NI Act against the accused before the XIII Special Magistrate, Hyderabad where the learned Magistrate has taken cognizance of the same in C.C.No.400 of 2013 and later it was re-numbered as C.C.No.626 of 2013. The learned Magistrate after hearing both sides and after considering the evidence available on record, by judgment dated 18.12.2014 convicted and sentenced the accused as stated in the preamble.
6. Aggrieved by the said judgment, the accused preferred Crl.A.No.227 of 2014 before the II-Additional Metropolitan Sessions Judge, Hyderabad. The learned Sessions Judge, after hearing the appellant-complainant and without hearing the respondent-accused, by order 26.10.2015 allowed the appeal having found the accused not guilty for the offence under Section 3 138 of the NI Act and, accordingly, acquitted the accused. Dissatisfied, the complainant preferred the present revision case.
7. Learned counsel for the revision petitioner-complainant submits that the trial court has rightly appreciated the evidence available on record, both oral and documentary, and had arrived at appropriate decision and on appeal preferred by the 1st respondent-accused, the learned Sessions Judge, without hearing the accused had set aside the conviction and sentence imposed by the trial court, and found the accused not guilty for the offence under Section 138 of the NI Act and, accordingly, acquitted him and the same is without appreciation of the material evidence on record. Learned counsel further submits that since there is manifest error of law and procedure, he prayed to remit the matter to the appellate court to re-hear the appeal afresh. In support of his submissions, he relied on the decisions of the Hon'ble Apex Court in JOSEPH STEPHEN AND OTHERS v. SANTHANASAMY 4 AND OTHERS1 and of this court in CHEEKATIMARLA SATYANARAYANA v. STATE OF ANDHRA PRADESH2.
8. Per contra, learned counsel for the respondent-accused submits that there is no error apparent of law or procedure in disposing of the appeal and the appellate court has not heard the counsel for the accused, but the appellate court has appreciated the material available on record and had rightly allowed the appeal which needs no interference.
9. It is settled principle of law that when the Advocate of the appellant did not appear or refused to argue, the appellate court shall appoint an Advocate as amicus curiae and then proceed with the appeal on merits. Therefore, the appellate court is not entitled to dismiss the criminal appeal for default nor can it dispose of the appeal on merits without hearing the Advocate of the accused or legal aid counsel of the accused.
10. Undisputedly, the material on record discloses that the learned Metropolitan Sessions Judge while disposing of the appeal 1 2022(1) ALD (Crl.) 959 (SC) 2 2012(1) ALD (CRL.) 332 (AP) 5 had neither heard the counsel nor appointed an advocate as amicus curiae and without do doing proceeded with the appeal on merits and decided the same. Therefore, there is manifest error of law and procedure in disposing of the appeal filed by the accused.
11. In JOSEPH STEPHEN's case (1 supra), the Hon'ble Apex Court while dealing with the powers of revisional jurisdiction of the High Court under Section 401(3) Cr.P.C., in similar circumstances, held that this court has two options available (i) to remit the matter to the first appellate court to re-hear; or (ii) in appropriate case remit the matter to the trial court for re-trial etc.
12. In the instant case, a perusal of the judgment of the appellate court shows that the error in procedure while disposing of the appeal is apparent/needs to be corrected by invoking the powers under Section 401(3) Cr.P.C and, as per the decision of the Hon'ble Apex Court stated supra, and it is a fit case to remand the matter to the appellate court to re-hear the appeal fresh in order to give fair opportunity to both parties for proper adjudication of the case after appreciating the entire material on record. 6
13. Accordingly, the criminal appeal is allowed. The judgment dated 26.10.2015 in Crl.A.No.227 of 2014, on the file of the II-Additional Metropolitan Sessions Judge, Hyderabad, is hereby set aside and the matter is remitted to the appellate court for hearing the appeal afresh after giving notice to both the parties. Since the matter pertains to the year 2015, the appellate court is directed to dispose of the same within three months from the date of receipt of a copy of this order.
14. Pending miscellaneous petitions, if any, stand closed.
_______________________ A.SANTHOSH REDDY, J 06.09.2022 Lrkm