IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 11.01.2017 CORAM:
THE HONOURABLE MR.JUSTICE V.BHARATHIDASAN Crl.R.C.No.783 of 2011
1. G.Subramaniam
2. C.Balasubramanian ..Petitioners Vs Tamilselvan, S/o. K.Arumugam, TEE-YES Textiles, 1/D, Ammal Eri Road, Dadagapatti Gate, Salem- 636006.
rep. By his Power of Attorney Sekar, S/o. Late Alagappan, Southern YarnAgencies, 147-G, Sri Hari Complex, Appuchetty Street, Shevapet, Salem – 636 002 ..Respondent Prayer:- Criminal Revision filed under Section 397 r/w. 401 Cr.P.C., against the order dated 23.05.2011 made in C.A.No.160 of 2010 on the file of the Additional District and Sessions Judge, Salem, dismissing the appeal against the conviction imposed in C.C.No.291 of 2001 dated 12.10.2010 on the file of the Judicial Magistrate No.IV, Salem.
For Petitioners : Mr. R.Marudhachalamurthy For Respondent : Mr.S.Kalyanaraman
ORDER
The petitioners are the accused in a private complaint filed under Section 138 of the Negotiable Instrument Act by the respondent. The trial Court earlier convicted the petitioners and sentenced them to undergo rigorous imprisonment for one year and to pay a fine of Rs.5000/- in default to undergo simple imprisonment for two months. Challenging the above said conviction and sentence the petitioners/accused filed an appeal before the Additional District and Sessions Court, Salem, and the lower appellate court dismissed the appeal for default on the ground that the appellants were called absent and there is no representation on their behalf . Aggrieved over the same, the present revision has been filed.
2. It is settled law that for the non-appearance of the appellants, the court below cannot dismiss the appeal for default. The only course open to the court below is, if the appellants are called absent, the Court may appoint a legal aid counsel, for the appellant or decide the appeal on merit. Without doing so, the lower appellate court dismissed the appeal for default, which is not http://www.judis.nic.ipn ermissible under law.
3. In the above circumstances, the criminal revision case is allowed and the order passed by the Additional District and Sessions Judge, Salem in C.A.No.160 of 2010 dated 23.05.2011 is set-aside and the matter is remitted back to the lower appellate court and the Additional District and Sessions Judge, Salem, is directed to restore the Appeal and dispose the same after hearing the parties within a period of 3 months from the date of receipt of a copy of this order.
11.01.2017 mrp Index:Yes To
1. The Additional District and Sessions Judge, Salem.
2. The Public Prosecutor, High Court, Madras.
V.BHARATHIDASAN, J.
mrp Crl.R.C.No.783 of 2011 11.01.2017