Advocates:
['m/s m mohana sundaram', '', 'T N LAKSHMI NARASIMAN', 'PUBLIC PROSECUTOR', '', 'M/S C RAMKUMAR', 'N SANTHOSH']

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 06.10.2015

Coram

THE HONOURABLE MR. JUSTICE B. RAJENDRAN

Criminal Revision Case No. 1361 of 2012

Thirupathy

...Petitioner

Versus

1. The State represented by

The Public Prosecutor

2. Mr.Nazar

...Respondents

Criminal Revision Case filed under Section 397 and 401 of

Cr.P.C. to call for the records and set aside the conviction and

sentence confirmed in the judgment dated 11.10.2012 by the

Hon`ble III Additional District and Sessions Judge, Coimbatore

in Criminal Appeal No.200 of 2012 preferred against C.C.No.398

of 2011 on the file of the learned Judicial Magistrate, Fast

Track Court at Magisterial Level- II, Coimbatore.

For Petitioner

:

Mr. Mohana Sundaram

For Respondent 1

:

Mr.V.Arul

Government Advocate

For Respondent 2

:

Mr.C.Ramkumar

ORDER

The petitioner stood charged for the offences punishable

under Section 138 of the Negotiable Instrument Act and tried

before the learned Fast Track Court (Magisterial Level- II)

Coimbatore. Ultimately, after trial, the petitioner was

convicted for the offences under Section 138 of the Negotiable

Instrument Act and sentenced to undergo three months simple

imprisonment and to pay a fine of Rs.2000/-, in default, to

undergo one month simple imprisonment for the offence under

Section 138 of the Negotiable Instrument Act. Questioning the

correctness of the order of conviction and sentence imposed on

him, the petitioner has filed Crl.A. No. 200 of 2012 before the

learned III Additional District and Sessions Judge, Coimbatore,

https://hcservices.ecourts.gov.in/hcservices/

and by judgment dated 11.10.2012, the appellate court dismissed

the appeal for default without assigning any reasons on merits.

2.

The brief facts of the case as could be unfolded from

the materials on record, is that the accused borrowed Rs.2.50

lacs on 24.9.2009 from the complainant and agreed to repay with

interest at 24% per annum. To discharge the said debt, the

accused issued a cheque dated 28.10.2009 for Rs.2.50 lacs. The

said cheque was dishonored for the reason funds insufficient as

on 31.10.2009. A legal notice was issued on 06.11.2009. Even

thereafter, the accused has not repaid the loan amount.

Therefore, the complaint has been filed.

3. The learned counsel for the petitioner submitted that

the appellate Court, without giving an opportunity to the

petitioner, has dismissed the appeal for non-prosecution by

judgment dated 11.10.2012, which is per se illegal and contrary

to the judgment of the Hon`ble Supreme Court.

4. The learned counsel for the respondent submitted that

the petitioner was regularly absent. On 11.10.2015 also, the

petitioner was absent and hence, it was passed over and called

at 12.45. Even at 12.45 p.m, the petitioner was not present.

Therefore, the appellate Court has rightly dismissed the appeal.

5. Heard the learned counsel on either side and perused

the materials available on record.

6. According to the petitioner, since he could not appear

before the court on 11.10.2011, the trial court dismissed the

appeal for non prosecution, which is not permissible in law and

that too, without giving an opportunity to the petitioner to

put-forth his case.

7. Admittedly, in the present case, the appellate Court

has dismissed the appeal for default in one line without

assigning any reasons. As per the judgment of the Hon''ble

Apex Court reported in (2013) 3 SCC 721 [K.S.Panduranga vs.

State of Karnataka], if the petitioner do not appear, there is

no necessity for the Court, which is hearing the matter, to

issue warrant for special notice or appoint any Amicus Curiae to

argue the matter on behalf of the petitioner. The Court is

empowered to deal with the matter on merits and dispose of the

same and not on the ground of non prosecution.

8. But in the case on hand, the Court below, wi