IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 5TH DAY OF NOVEMBER, 2012 BEFORE
THE HON'BLE MR. JUSTICE A.N. VENUGOPALA GOWDA CRIMINAL REVISION PETITION NO.710/2010 BETWEEN:
1. Sri S.R. Jayashankar,
S/o. late Sri G. Rajagopal,
Aged about 46 years.
2. Smt. Girija Shankar,
W/o. Sri S.R. Jayashankar,
Aged about 44 years,
Both were earlier residing at
No.202, Adarsh West, 1st Main,
1st Cross, Sarakki Main Road,
Bangalore - 560 028.
Currently at Flat No.104-B,
No.10, Sarakki Main Road,
J.P. Nagar I Phase,
Bangalore - 560 078. ... PETITIONERS (By Sri S. Subramanya for
M/s. Upasana Associates, Advs.)
Sri Baldev Singh,
S/o. Sri Tirath Singh,
Major in age,
Residing at No.6/1, 1st Cross,
2nd Main, Sudhamnagar,
Bangalore - 560 027. ... RESPONDENT (By Sri M.V. Manjunatha, Adv.)
This Crl.R.P. is filed under S.397 Cr.P.C. praying to set aside the order/judgment dated 27.4.2010 of the Presiding Officer, Fast Track Court-XI, Bangalore in Crl.A.No.861/2009 in dismissing the appeal filed by the petitioners herein by confirming the judgment dated 14.10.2009 of the XXII-ACMM and XXIV ASCJ, Bangalore in C.C.No.14104/2007.
This Crl.R.P. coming on for final hearing this day, the Court made the following:
In the present case, the Trial Court convicted the petitioners - accused, in a case related to the dishonour of a cheque under S.138 of the Negotiable Instruments Act, 1881 (for short, 'the Act'). The petitioners - accused were sentenced to pay a fine of `6,10,000/-, in default, to undergo S.I. for a period of one year. The complainant was held entitled for compensation of `6,05,000/-, in case of payment of fine by the accused. In appeal filed by the accused, the said finding was confirmed. Assailing the said judgment of conviction and order of sentence, as affirmed 3
in the appeal, the accused have filed this criminal revision petition.
2. Sri S. Subramanya, learned advocate for the petitioners contended that the learned appellate Judge has erred in law in taking the arguments as heard on 21.04.2010, though he has noted in the Order Sheet, as to the absence of both the parties before the Court. He submitted that the appellants were not provided with reasonable opportunity to address the arguments on merits of the case. By placing reliance on the decision in the case of MD. SUKUR ALI VS. STATE OF ASSAM, AIR 2011 SC 1222, he submitted that, criminal case cannot be decided against the accused in the absence of counsel. He further submitted that, in the facts and circumstances of the case and in the interests of justice, interference with the impugned Judgment of the Appellate Court is warranted.
3. Sri M.V. Manjunatha, learned advocate for the respondent, on the other hand submitted that the absence 4
of the appellants and their learned advocate on 21.04.2010 was deliberate and hence, the learned Appellate Judge was justified in perusing the record of the case and in deciding the appeal on its merit. Learned counsel sought dismissal of the petition.
4. Perused the record of the case. In the light of the rival contentions, the short point for consideration is; " Whether there is denial of reasonable opportunity of hearing by the learned Appellate Judge and whether the judgment passed on the appeal is vitiated?
5. Petitioners, who stood trial, were convicted in C.C. No.14104 of 2007, on 14.10.2009, by the XXII Addl. CMM, Bangalore, for the offence punishable under S.138 of the Act and they were sentenced to pay fine, with default stipulation. Criminal appeal No.861/2009 was filed on 13.11.2009, assailing the said judgment of conviction and the order of sentence. On 16.11.2009, while ordering the issuance of notice to the respondent - complainant, the sentence imposed on the accused was suspended, subject 5
to certain conditions. The Trial Court record was subsequently called for and was received on 06.04.2010. Appeal was posted on 21.04.2010 for hearing the arguments. Advocates appearing for the appellants and also the respondent, did not appear. Argument was taken as heard and the appeal was dismissed on 27.04.2010.
6. In identical circumstances, in the case of N. NAGARAJU, S/O. NARASIMHAIAH, VS. G.R. GUMASTE S/O. LATE RAMACHANDRA, Crl.R.P. No.1127/2011, decided on 05.10.2012, it was held by me as follows:
"6. The appeal being against the judgment of conviction, the appellate Court ought to have granted reasonable time for the appellant to make alternate arrangement in case the counsel on record is not available or the Court itself ought to have appointed an Amicus Curiae, heard the appeal and decided the same. Instead, the matter was posted to 12.8.2011 and it was taken that, sufficient time was granted to the appellant and arguments was not advanced. The sequence of events noticed supra would indicate that reasonable opportunity of hearing has not been provided to the appellant. The ratio of decision reported in (1981) Supp. SCC 75 has not been followed. In the circumstances, the judgment passed by the appellate Judge is vitiated and warrants interference. " 6
7. In the case of Md. Sukur Ali (supra), the question considered by the Apex Court was, whether, in a criminal case, if the counsel for the accused does not appear, for whatever reasons, should the case be decided in the absence of the counsel against the accused or the Court should appoint an amicus curiae to defend the accused. Upon consideration, it has been held as follows:
" 7. We are of the opinion that even assuming that the counsel for the accused does not appear because of the counsel's negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as Amicus Curiae to defend the accused. This is because liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the 'heart and soul' of the fundamental rights. xxx xxx xxx xxx
22. We reiterate that in the absence of a counsel, for whatever reasons, the case should not be decided forthwith against the accused but in such a situation the Court should appoint a counsel who is practising on the criminal side as Amicus Curiae and decide the case after fixing another date and hearing him. " 7
8. In the instant case, the petitioners filed the appeal on 13.11.2009. Notice was ordered on 16.11.2009, to the respondent. Lower Court records were called for on 18.11.2009. The record of criminal case was received on 06.04.2010. Appeal was adjourned to 21.04.2010, for hearing of arguments. On 21.04.2010, the advocates for the appellants and the respondent, did not appear. Argument was taken as heard and the case was posted for judgment, which was pronounced on 27.04.2010. The saying 'justice hurried is justice buried' applies to the case on hand. In the circumstances, the Judgment passed by the Appellate Judge, impugned herein, is vitiated, since reasonable opportunity of hearing has not been provided to the appellants.
In the result, the revision petition is allowed and the impugned Judgment passed by the Appellate Court is set aside. Crl.A.No.861/2009 is restored for consideration and decision afresh, both on question of law and fact. Parties are directed to appear before the appellate Court on 03.12.2012 and receive further orders. Both the 8
parties are directed to render ready co-operation to the appellate Court to decide the appeal expeditiously and before 16.02.2013.
Contentions of both parties are left open for consideration by the appellate Court. LCR be sent to the appellate Court forthwith. Sd/-