Rajasekharan Nair vs State Of Kerala
2021 Latest Caselaw 5060 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM

                              PRESENT

          THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR

    THURSDAY, THE 11TH DAY OF FEBRUARY 2021 / 22ND MAGHA,1942

                    Crl.Rev.Pet.No.2979 OF 2010

  AGAINST THE ORDER/JUDGMENT IN CRA 227/2009 DATED 08-07-2010 OF
             ADDITIONAL DISTRICT COURT-I,MAVELIKKARA

  AGAINST THE ORDER/JUDGMENT IN CC 676/2006 DATED 15-04-2009 OF
        JUDICIAL MAGISTRATE OF FIRST CLASS -I, CHENGANNUR


REVISION PETITIONER/S/APPELLANT/ACCUSED:

             RAJASEKHARAN NAIR
             S/O.PADMANABHA PILLAI, NARAKATHARA VEEDU, KUMARAPURAM
             P.O., HARIPPAD.

             BY ADVS.
             SRI.R.SUNIL KUMAR
             SMT.A.SALINI LAL

RESPONDENT/S/RESPONDENTS/COMPLAINANT:

      1      STATE OF KERALA
             REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
             ERNAKULAM.

      2      V.RADHAKRISHNAN
             PERINETHU VEEDU
             KADAMPOOR MURI, ENNACKADU VILLAGE,
             CHENGANNUR.

             R1 BY ADV. SRI.AJITH MURALI
             SMT. M. K. PUSHPALATHA, SR.PP

     THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
11.02.2021, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
 Crl.Rev.Pet.No.2979 OF 2010

                              2




                      O R D E R

The revision petitioner is the accused in

C.C.No.676/2006 on the files of the trial court. The

trial court convicted and sentenced the revision

petitioner under Section 138 of the N.I.Act, against the

revision petitioner filed Crl.A.No.227 of 2009 before

the sessions court. The sessions court concerned

dismissed the said appeal, as there was no

representation for the revision petitioner, against

which this revision petition has been filed.

2. Heard.

3. It is not disputed that the appeal was already

admitted. Section 384 Cr.P.C. empowers the court to

dismiss the appeal summarily. Section 385 Cr.P.C. Crl.Rev.Pet.No.2979 OF 2010

provides the procedure to be followed if the appeal is

not summarily dismissed as provided under Section

384 Cr.P.C. It is clear from the provisions of Section

385 Cr.P.C. that if the appeal is not summarily

dismissed under Section 384 Cr.P.C., the court shall

dispose of the appeal on merits after scrutiny of the

records and hearing the parties. Section 386 Cr.P.C

deals with the powers of the appellate court. Thus, the

above provisions would make it clear that if the appeal

is not summarily dismissed under Section 384 Cr.P.C.,

the court shall not dismiss the appeal otherwise than

on merits.

6. The Three Judge Bench of the Hon'ble Apex

Court in Bani Singh and Others v. State of U.P. [AIR

1996 SC 2439] held that the plain language of Sections Crl.Rev.Pet.No.2979 OF 2010

385 to 386 does not contemplate dismissal of the

appeal for non-prosecution simpliciter and the Code

envisages the disposal of the appeal on merits after

perusal and scrutiny of the records.

It is clear from the above legal position that the

appellate court shall dispose of the appeal only on

merits, if the appeal is not dismissed summarily under

Section 384 Cr.P.C. However, in this case, the appellate

court dismissed the appeal for non-prosecution as

there was no representation for the revision petitioner

before the appellate court. Since the appeal was not

disposed of on merits by the appellate court, the

judgment of the appellate court cannot be sustained

and consequently, I set aside the same and direct the

appellate court to dispose of the appeal afresh, in Crl.Rev.Pet.No.2979 OF 2010

accordance with law, affording reasonable opportunity

of hearing to the appellant or the Amicus Curiae, as the

case may be and the learned Public Prosecutor.

This Criminal Revision Petition is allowed as

above.

The appellant shall appear before the appellate

court on 04.03.2021 without further notice.

SD/-

B.SUDHEENDRA KUMAR JUDGE RK/11.02.2021