Madras High Court

S.Jeyaeswari vs K.Kalaivani on 23 January, 2025

                                                                          Crl.R.C(MD)No.330 of 2024



                          BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
                                            Reserved on       :   06.01.2025
                                           Pronounced on      :   23.01.2025
                                                      CORAM:

                                  THE HONOURABLE MR.JUSTICE P.VADAMALAI

                                              Crl.R.C(MD)No.330 of 2024
                     S.Jeyaeswari                                              ... Petitioner


                                                           Vs.

                     K.Kalaivani                                           ... Respondent

                     PRAYER : This Criminal Revision Case has been filed under Section
                     397 r/w 401 of Cr.P.C., to call for the records pertaining to the order of
                     conviction in Crl.A.No.94 of 2022, dated 27.02.2024 under Section
                     372(3) of Cr.P.C., on the file of the Additional District Judge (FTC),
                     Theni in S.T.C.No.40 of 2021, dated 11.10.2022 under Section 255(2) of
                     Cr.P.C., confirming the order of the Judicial Magistrate Court (FTC) at
                     Uthamapalayam, Theni District and set aside the same and allow this
                     Criminal Revision Petition.

                                     For Petitioner        : Mr.R.Anand
                                                             for Mr.S.Madhan Kumar

                                     For Respondent        : Mr.C.Mayil Vahana Rajendran




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                                                                              Crl.R.C(MD)No.330 of 2024

                                                           ORDER

This Criminal Revision Case is filed to set aside the judgment,

dated 27.02.2024 in Crl.A.No.94 of 2022 on the file of the learned

Additional District Judge (FTC), Theni and allow the Criminal Revision

Case.

2.The brief facts of the case:

The respondent filed a case in S.T.C.No.40 of 2021 on the file of

the Judicial Magistrate Court (FTC), Uthamapalayam against the revision

petitioner under Sections 138 and 142 of the Negotiable Instruments Act

on the allegation of dishonor of the cheque No.331083, dated 23.08.2021

for Rs.5,00,000/-, which was issued by the revision petitioner towards

loan obtained by him from the respondent. The revision petitioner

contested the case. Both sides adduced oral and documentary evidences.

On the respondent's side, P.W.1 was examined and Ex.P.1 to Ex.P.5 were

marked. On the revision petitioner's side, D.W.1 to D.W.5 were examined

and Ex.D.1 to Ex.D.6 were marked.

3. After hearing both sides and after considering the evidences, the

learned Judicial Magistrate (FTC), Uthamapalayam passed the judgment

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dated 11.10.2022 convicting the revision petitioner U/s. 138 of the

Negotiable Instruments Act and awarded sentence of six months simple

imprisonment and directed to pay compensation of cheque amount

Rs.5,00,000/- U/s.357 (3) of Cr.P.C. to the respondent.

4. Challenging the judgment of the trial Court, the revision

petitioner has preferred the appeal in Crl.A.No.94 of 2022 before the

Additional District Court (FTC), Theni. The Appellate Court has

dismissed the criminal appeal on the ground that the appellant was absent

and there was no representation on her side. Being aggrieved by the

judgment of dismissal for default passed by the Appellate Court, the

revision petitioner has moved this Court by preferring the present

criminal revision case.

5. Heard the learned counsel appearing for the revision petitioner

and the learned counsel for the respondent. Perused the records in this

Criminal Revision Case.

6. The learned counsel appearing for the revision petitioner has

submitted that the revision petitioner’s husband namely

Suvaneshbairavan got loan from one Srinithya and Muthukumar and https://www.mhc.tn.gov.in/judis

issued three cheques including the cheque No.331083 in question to

them. The revision petitioner’s husband settled the loan, but the said

persons denied to return the cheque, hence, he lodged a police complaint

and the same was challenged in Crl.O.P.(MD)Nos.2530 and 3416 of 2022

before this Court. Pending these cases, the respondent filed the cheque

case by misusing the cheque in question. The revision petitioner let oral

and documentary evidence. But, the Appellate Court simply dismissed

the appeal as the appellant was absent and also there was no

representation on her side. The Appellate Court cannot pass such order

of dismissal, without on merits. The appellate Court ought to have

adjudicated the appeal on merits by perusing the records and judgment of

the trial Court, but the same was not done. The Appellate Court has

failed to appoint a lawyer, who is practicing on the criminal side as

Amicus Curiae and decide the case after hearing both sides. Therefore,

the judgment of the Appellate Court has to be set aside and the matter

may be remanded back for fresh consideration. The learned counsel has

relied on the following citations:

''1) (2013) 3 Supreme Court Cases 721 (K.S.Panduranga /v/ State of Karnataka)

2) Order dated 08.07.2020 passed in Crl.Appeal No.474 of 2020 by the Hon’ble Supreme Court.

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3) Order dated 04.10.2024 passed by this Court in Crl.R.C.(MD)No.519 of 2024.''

7. The learned counsel for the respondent has objected the criminal

revision case. He would further submit that the Appellate Court has

given several opportunities for hearing to the revision petitioner, but she

has not turned up for argument. He would further argue that the reason

for non appearance of the revision petitioner and her counsel before the

Appellate Court was not justified even in the present memorandum of

revision. The revision petitioner has filed this criminal revision in order

to drag on the proceedings to evade payment of compensation as directed

by the trial Court. Therefore, the criminal revision case may be

dismissed.

8. On hearing both side rival arguments and on perusal of records,

it is clear that the respondent has filed the main case under Sections 138

and 142 of the Negotiable Instruments Act against the revision petitioner

alleging that the cheque for Rs.5,00,000/- issued by the petitioner was

dishonoured and the same was taken on file as S.T.C.No.40 of 2021 by

the learned Judicial Magistrate (FTC), Uthamapalayam. The trial Court

found the revision petitioner guilty U/s.138 of the Negotiable

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Instruments Act and awarded sentence as stated supra. The revision

petitioner has preferred the Criminal Appeal in Crl.A.No.94 of 2022

before the Additional District Court (FTC), Theni. On 27.02.2024, the

Appellate Court has passed the order as follows:

“Appellant called absent. No representation. Respondent side presented. Again called and appellant called absent even at 06.35 p.m on day. This appeal is dismissed summarily since conditional order not complied.”

9. The citations relied on by the revision petitioner are perused.

It is a settled principle in catena cases that an appeal against the order of

conviction cannot be dismissed in default and must be decided on merits

even if the appellant is absent. The Hon’ble Supreme Court has also

reiterated the same in Crl.Appeal No.474 of 2020. This Court has also

emphasized the said principle of law while passing an order in

Crl.R.C(MD)No.519 of 2024, dated 04.10.2024 following the settled

decision of Full Bench of the Hon’ble Supreme Court held in Bani Singh

& Ors. /vs/ State of U.P. (AIR 1996 SC 2430). In the decision of Three

Judge Bench of the Hon’ble Supreme Court in Bani Sing and

others /v/ State of Uttar Pradesh (AIR 1996 SC 2439), wherein it is

held as follows:

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“…The plain language of section 385 makes it clear that if the Appellate court does not consider the appeal fit for summary dismissal, it ‘must’ call for the record and section 386 mandates that after the record is received, the appellate court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of sections 385, 386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects that the appellate court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial court in the judgment, but by cross checking the reasoning with the evidence on record with a view to satisfy itself that the reasoning and findings recorded by the trial court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non prosecution but only contemplates disposal on merits after perusal of the record.'' ''..........The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer absent. If the court does so as a matter of prudence or indulgence it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and judgment of the trial court. We would, however, hasten to add that if the accused is in jail and cannot, on his own come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused- appellant if his lawyer is not present. If the lawyer is absent, and the Court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so.”

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10. In view of the above decision, it is clearly settled that if the

appellant or his counsel is absent, the Appellate Court can dispose of the

appeal on merits after perusing the records and judgment of the trial

Court. In this case, the respondent side has also admitted that the appeal

is dismissed for default, but only contention is that the revision petitioner

dragging the proceedings in order to evade payment of compensation.

11. Considering all these facts and circumstances of this case, and

also in view of the settled proposition of law, the impugned judgement of

the dismissal of appeal for default passed by the Appellate Court is not

valid one and the same is liable to be set aside and the matter is to be

remanded back for fresh disposal on merits in accordance with law.

At the same time, considering the year of original filing of the case, there