BASHKEER K S Vs. SHAJI

JUDGEMENT

(1.) Revision is by the accused convicted of the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act"). The appeal preferred by him against the conviction rendered by the learned magistrate was disposed of without hearing him, but on merits, is the challenge canvassed to assail the judgment rendered by the learned Additional Sessions Judge, Pathanamthitta. The fact that the appeal was disposed of without hearing the counsel for the petitioner/accused and both parties were absent when the appeal was posted on account of a mistake in the A diary is not disputed by the learned counsel for the 1st respondent/complainant. A criminal appeal once admitted and taken on file by the Court has to be disposed of after providing an opportunity of hearing to the appellant or his counsel, if he is so represented, and there cannot be a disposal of appeal, even if the appellant and his counsel are absent, after taking it 'as heard'. If the appellant or his counsel was not present, the Appellate Court should have given a notice to the appellant, and even after such notice, if he fails to appear, then, appoint a counsel for addressing arguments on the merits of the appeal for its fair disposal. Challenge in the case being one against conviction, and having regard to the mandatory requirement covered under Section 386 of the Code of Criminal Procedure, an appeal, once admitted and taken on file, cannot be disposed of on merits in the manner done by the Court below. So much so, the judgment of the Appellate Court impugned in the revision is liable to be set aside. I do so.

(2.) Setting aside the judgment, the Appellate Court, Additional Sessions Judge, Fast Track Court-II, Pathanamthitta, is directed to take back the appeal on file and dispose it, in accordance with law. Parties are directed to appear before the Additional Sessions Judge, Fast Track Court-II, Pathanamthitta, on 05/09/2011. The learned Sessions Judge taking back the appeal shall give it top priority and dispose it as expeditiously as possible, at any rate, within three months from the date of appearance of the parties, as indicated above.