The dismissal of a criminal appeal for non-prosecution is impermissible; courts must ensure a hearing on merits and may appoint amicus curiae if necessary.

ORDER :

K. Murali Shankar, J.

This Criminal Revision is directed against the order passed in Crl. A.No.89 of 2021, on the file of V Additional District Court, Madurai, dismissing the appeal for default.

2. The respondent / complainant has filed a private complaint under Section 200 Cr.P.C., against the appellant for the offence under Section 138 of the Negotiable Instruments Act. The learned Judicial Magistrate, after full trial, has passed the judgment dated 03.07.2021, finding the appellant guilty for the offence under Section 138 of the Negotiable Instruments Act and convicted and sentenced him to undergo six months Simple Imprisonment and to pay compensation of Rs.10,00,000/-(Rupees Ten Lakhs only) to the complainant and in default to undergo two months Simple Imprisonment. Aggrieved by the judgment of conviction, the accused has preferred an appeal in Crl.A. No. 89 of 2021 and was pending on the file of V Additional District Judge, Madurai. When the appeal was taken up for hearing on 05.10.2023, as there was no representation for the appellant and by recording the presence of the respondent's Counsel and by observing that there was no progress in the appeal, despite granting sufficient time, dismissed the appeal for default. Challenging the dismissal of the appeal for default, the present Criminal Revision Case came to be filed.

3. The learned Counsel for the petitioner would submit that the first appellate Court has dismissed the appeal only on the ground of non-appearance, that the revision petitioner's non-appearance was neither wilful nor wanton and he is aged about 72 years and battling with age old illness, that since there was no liability, the question of invoking Section 138 N.I., Act, does not arise and that even on merits, the revision petitioner is having a good case in the appeal. But the learned Counsel would mainly contend that the Criminal Appeal cannot be dismissed for default and in the absence of the Counsel, to argue the appeal, the course open to the first Appellate Court is 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.

4. The learned Counsel appearing for the respondent would fairly concede that the Criminal Appeal cannot be dismissed for non-prosecution, but would submit that the appellant has been protracting the proceedings from 2017 onwards and after filing the appeal in 2021, he was never ready for proceeding with the appeal and despite granting sufficient opportunities and as there was no representation for the appellant, the first appellate Court has chosen to dismiss the appeal. In case of allowing the revision, the first appellate Court may be directed to hear the appeal and dispose of the same within a short time to be stipulated by this Court.

5. The learned Counsel for the petitioner would rely on the decision of the Hon'ble Supreme Court in the case of K.Muruganandam and Others Vs. State represented by the Deputy Superintendent of Police and another in Crl.A.No. 809 of 2021, dated 12.08.2021, wherein also the Criminal Appeal was dismissed for non-prosecution and the Hon'ble Apex Court has observed that it is well settled if the accused does not appear though Counsel appointed by him or her, the Court is obliged to proceed with the hearing of the case only after appointing an amicus curiae, but cannot dismiss the appeal merely because of non-representation or default of the Advocate for the accused and on that basis has set aside the impugned judgment and relegate the parties before the High Court for hearing the appeal afresh on its own merits and in accordance with law.