An appeal against conviction cannot be dismissed for non-representation and must be decided on merits; failure to do so violates procedural fairness.

O R D E R

This revision petition has been filed under Sections 397 and

401 of the Code of Criminal Procedure (for short `Cr.P.C” hereafter), challenging judgments in C.C.No.973/2009 on the files of the Judicial First Class Magistrate Court-II, Attingal dated 22.11.2017 and the judgment in Crl.Appeal No.238/2017 dated 23.06.2018 rendered by the Additional District and Sessions Judge-

VI, Thiruvananthapuram.

2. Heard the matter in detail. Perused the judgments impugned and the relevant materials available.

3. Short facts:

The 1^st respondent in this revision petition, who is the complainant in C.C.No.973/2009, launched prosecution alleging commission of offence punishable under Section 138 of the Negotiable Instruments Act (`N.I Act’ for short) when cheque for Rs.2,50,000/- alleged to be issued by the accused in favour of the complainant on 01.12.2008 got dishonoured for want of funds and the accused failed to repay the amount covered by the cheque even on acceptance of demand notice.

4. The Magistrate Court took cognizance in this matter and secured the presence of the accused for trial. Then the learned Magistrate tried the matter and finally convicted the accused for the offence punishable under Section 138 of the N.I Act and sentenced as under:

“Therefore, the accused is convicted u/s. 255(2) Cr.P.C and sentenced to undergo imprisonment till the rising of the court and to pay fine of Rs.2,50,000/- (Rupees two lakhs fifty thousand only). In default of payment of fine amount, the accused shall undergo simple imprisonment for a further period of one month. Fine amount, if realised, shall be given to the complainant as compensation u/s.357 Cr.P.C.”

5. The revision petitioner herein filed appeal before the Sessions Court and the learned Additional Sessions Judge-VI, Thiruvananthapuram, dismissed the appeal as under:

“Appellant is continuously absent and there was no representation for the appellant. The order of conviction and sentences though challenged, nothing has been brought on record to dispute the final finding. On re-appreciation of evidence adduced before the court below, it would reveal that there is sufficient materials to establish the guilt of accused. The judgment of the court below warrant no interference. Accordingly the appeal stands dismissed. Communicate the judgment to Judicial First Class Magistrate Court-II, Attingal for necessary action against the accused.”

6. It is submitted by the learned counsel for the revision petitioner that even though the Additional Sessions Court narrated in the judgment that on re-appreciation of evidence adduced before the court below it would reveal that there was sufficient material to establish the guilt of the accused, in fact, the appellate court failed to re-appreciate the evidence and no discussion in the appellate judgment, how the evidence was re-appreciated and how the court below entered into conviction. According to the learned counsel for the appellant, the appellate court dismissed the appeal for non- prosecution. It is also submitted that the appeal should not have been dismissed for non- representation for the appellant or for non- prosecution. The said course of action is not legally permissible. Therefore, the appellate judgment is liable to be set aside and the appeal may be remanded to the appellate court for hearing on merits.

7. The questions pose herein are;

(i) Whether an appeal against the conviction and sentence filed by an accused can be dismissed on the ground of non-

representation, or for non-prosecution ?

(ii) How does an appellate court can dispose of an appeal when the appellant or his counsel is not ready to argue the matter on merits ?

8. In this connectio