P.SETHU Vs. R.SELVAKUMARAN

JUDGEMENT

(1.) 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 Sec. 200 Cr.P.C., against the appellant for the offence under Sec. 138 of the Negotiable Instruments Act. The learned Judicial Magistrate, after full trial, has passed the judgment dtd. 3/7/2021, finding the appellant guilty for the offence under Sec. 138 of the Negotiable Instruments Act and convicted and sentenced him to undergo six months Simple Imprisonment and to pay compensation of Rs.10,00,000.00(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 5/10/2023, 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 Sec. 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.