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TMI Blog2018 (9) TMI 1217X X X X Extracts X X X X X X X X Extracts X X X X ..... .144606, dated 12.07.2006. On presentaiton of the cheque for collection, it was returned for insufficiency of funds and payment stopped. Statutory notice, dated 21.07.2006 issued by the complainant was received by the petitioner/accused on 22.07.2006. He has not sent reply, inspite of receiving the notice. The Trial Court found him guilty, sentenced him to undergo imprisonment for three months and directed to pay a fine of Rs. 5,000/-, in default, to undergo one month rigorous imprisonment. Appeal was preferred by him before the learned Sessions Judge, Kanyakumari at Nagercoil in C.A.No.75 of 2008. The same was dismissed on 17.02.2018 confirming the order passed by the learned Judicial Magistrate No.III, Nagercoil, in S.T.C.No.3289 of 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 and there was no progress for the past ten years, following the Judgment of the Hon'ble Supreme Court in Bani Singh v. State of UP reported in AIR 1996 SC 2439, wherein the Hon'ble Apex Court has held that if the counsels are absent, the Court is not bound to adjourn the matter and it can dispose of the appeal after perusing the records and Judgment of the Trial Court, decided the case on merit by dismissing the appeal. In Paragraph Nos.15 and 16 of the Judgment in Bani Singh's case, the Hon'ble Supreme Court has held as follows: "15. ..., the law expects the Appellate Court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if he is present, before disposal of the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appearance of the accused-appellant if his lawyer is not present. If the lawyer is absent, and the court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. We are, therefore, of the opinion and we say so with http://www.judis.nic.in respect, that the Division Bench which decided Ram Naresh Yadav's case (AIR 1987 SC 1500) did not apply the provisions of Ss.385-386 of the Code correctly when it indicated that the Appellate Court was under an obligation to adjourn the case to another date if the appellant or his lawyer remained absent. 16.Such a view can bring about a stalemate situation. The appellant and his lawyer can remain absent with impunity, not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or adjourn the case infinitely. The Court can take assistance of amicus curiae, if necessary or appoint a counsel from Legal Aid or if the matter does not require any external assistance, on a perusal of the record, can pass order on merits. The first appellate Court has chosen the last option and gone through the records and the explanation of the defence and held against the appellant. 6.The Ajay case cited supra by the learned counsel for the revision petitioner was passed by the Bench consisting of two Hon'ble Judges, whereas the Judgment relied upon by the first appellate Court passed by the Bench, consisting of three Hon'ble Judges, A.M.Ahmadi, C.J.I., N.P.Singh and Mrs.Sujata V.Manohar, JJ., overruling the earlier Judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused ought to have lodged a complaint to the police. But, only after the complaint and during the course of the trial, such a defence is projected, which is only an afterthought without any truth. 9.The learned counsel for the revision petitioner would rely upon the recent Judgment of this Court in P.Manivel v. T.Seenivasan reported in 2018(1)MWN (Cr.) DCC 97 (Mad.), wherein the learned Judge relying upon the Judgment rendered by the Hon'ble Supreme Court in Rangappa v. Srimohan reported in 2010(4) CTC 118 (SC), has pointed out that presumption under Section 138 of the Negotiable Instruments Act can be discharged by the accused by preponderance of probability. Like the defence taken in this case, in the case cited above, the acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the defence is that the cheque was issued to one Muthulingam, that was stolen by the complainant, filled up and a private complaint was lodged under Section 138 of the Negotiable Instruments Act. In the absence of a complaint to the police regarding theft of the cheque and in the absence of any evidence to show how the cheque given to Muthulingam landed in the hands of the complainant, in the absence of any evidence, which would probabilise the subject cheque was not issued to the complainant to discharge an enforceable debt, the Trial Court and the appellate Court have rightly held that Ex.D.1 is a make belief document created in connivance of D.W.2 by the accused. In the said facts and circumstances of the case, though the appellate Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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