Mohd Ameer Mohiuddin, Hyd vs Sameer Azam, Hyd Ano
2022 Latest Caselaw 4415 Tel

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.

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

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

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

2022(1) ALD (Crl.) 959 (SC)

2012(1) ALD (CRL.) 332 (AP)

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.

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