Dismissal of a criminal appeal for non-prosecution is impermissible without examining merits; courts must appoint amicus curiae if the appellant's counsel is absent.

ORDER :

K.Murali Shankar, J.

The Criminal Revision is directed against the judgment in C.A.No.69 of 2024, dated 26.07.2024 on the file of the learned Additional District Judge (FTC), Theni, dismissing the appeal for default.

2. The respondent/complainant has filed a private complaint under Section 200 of Cr.P.C., against the appellant for the offence under Section 138 of Negotiable Instruments Act .

3.The case of the respondent/complainant is that the petitioner has borrowed a sum of Rs.6,00,000/- on 03.05.2023 as hand loan from the complainant and issued a cheque, dated 15.07.2023 drawn on HDFC Bank, Cumbum Branch in favour the complainant; that when the complainant presented the cheque for collection through his banker Union Bank of India, Uthamapuram Branch, the same was returned for want of sufficient funds in the bank account of the accused on 27.09.2023; that when the same was intimated to the accused, he requested the complainant to present the cheque again and accordingly, when the cheque was presented again, the same was returned again dishonored as insufficient funds on 12.10.2013; that thereafter, the complainant sent a legal notice, dated 30.10.2023 demanding the amount covered by the cheque; that the accused having receipt of the legal notice on 31.10.2023, has neither sent any reply nor made any payment and that therefore, the complainant was constrained to file the complaint under Section 200 Cr.P.C.

4. The learned Magistrate, after full trial, has passed the judgment, dated 06.04.2024 finding the appellant guilty for the offence under Section 138 of NI Act and convicted and sentenced him to undergo six months simple imprisonment and to pay a compensation of Rs.6,00,000/- to the complainant under Section 357(3) of Cr.P.C. Aggrieved by the judgment of conviction, the accused has preferred an appeal in Crl.A.No.69 of 2024 and was pending on the file of the Additional District Court (FTC), Theni. When the appeal was taken up for hearing on 26.07.2024, as there was no representation for the appellant and the appellant was called absent and by recording the presence of the respondent's counsel, dismissed the appeal. Challenging the dismissal of the appeal, the present revision came to be filed.

5.The learned counsel for the revision petitioner would submit that the appellate Court has dismissed the appeal only on the ground of non appearance; that the petitioner's non appearance was neither willful nor wanton; that the petitioner could not appear due to his ill health; that the complainant evidence is full of contradictions and he could not specifically say when the cheque was issued and that even on merits, the revision petitioner is having a good case in the appeal.

6.The learned counsel for the petitioner would further contend that the criminal appeal cannot be dismissed for non prosecution and in the absence of counsel to argue the appeal, the appellate Court is duty bound to engage an amicus curiae or legal aid counsel to argue the appeal on behalf of the appellant and that therefore, the impugned judgment is legally unsustainable and the same is liable to be set aside.

7.The learned counsel for the respondent would fairly concede that the criminal appeal cannot be dismissed for non prosecution. But he would submit that the appellant, after filing of the appeal, has been dragging on the proceedings and that since there was no representation for the appellant and the appellant was also called absent, the learned appellate Judge has proceeded to dismiss the appeal. He would further submit that in case of allowing the revision, the appellate Court may be directed to hear the appeal and dispose of the same within a short period to be stipulated by this Court.

8.At this juncture, it is necessary to refer the judgment of this Court in a similar case in P.Sethu Vs. R.Selvakumaran passed in Crl.RC(MD)No.519 of 2024, dated 04.10.2024, wherein this Court has observed as follows :

“5. The learned Counsel for the petitioner would re