GOPINATH Vs. SURESH

JUDGEMENT

(1.) The accused in a prosecution for the offence under S.138 of the Negotiable Instruments Act, 1881 (for short 'the NI Act') is the revision petitioner as he is aggrieved by the judgment of the Appellate Court since the appeal is disposed of without hearing him.

(2.) The case of the complainant that the revision petitioner had borrowed a sum of ' 55,000/- from the complainant and towards the discharge of the said liability, the accused issued a cheque for the said amount which when presented for encashment, was dishonoured as there was no sufficient fund in the account maintained by the accused and therefore, the accused has committed the offence punishable under S.138 of the NI Act. With the above allegation, the complainant approached the Judicial First Class Magistrate Court, Chittur by filing a complaint upon which cognizance was taken and instituted ST No. 2501 of 2007. During the trial of the above case, the complainant himself was examined as PW 1 and Ext. P1 to P5 were produced. No evidence either documentary or oral is produced by the defence. Finally, based upon the available materials and evidence, the trial Court has found that the revision petitioner / accused is guilty under S.138 of the NI Act and accordingly, sentenced him to undergo simple imprisonment for a period of three months and also directed him to pay compensation for ' 60,000/- to the complainant under S.357(3) of the CrPC and the default sentence is fixed as simple imprisonment for a period of one month. Aggrieved by the order of conviction and sentence and challenging the judgment of the Trial Court, the revision petitioner herein had preferred an appeal before the Sessions Court, but the Sessions Court by judgment dated 21/12/2010 in Crl. A No. 267 of 2009 dismissed the appeal confirming the conviction and sentence. It is the above conviction and sentence and judgments of the Courts below are challenged in this Crl. RP.

(3.) Learned counsel for the revision petitioner submitted that the Appellate Court dismissed the appeal confirming the conviction and sentence imposed by the trial Court without hearing the revision petitioner or his counsel and therefore, the judgment of the Appellate Court is liable to be set aide. Several other contentions are also taken by counsel for the petitioner, which according to me, need not be considered by this Court at this stage, especially since this Court is not inclined to consider the revision petition on merit, but to remand the matter back to the Appellate Court as the steps adopted by the Appellate Court while disposing of the appeal are not correct.