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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 ..... Court and also had reasoned out why the explanation of the defence does not probablised the reverse presumption. Revision petition dismissed. - Crl.R.C(MD)No.238 of 2018 And Crl.M.P(MD)No.3093 of 2018 - - - Dated:- 13-8-2018 - Dr. G. Jayachandran J. For the Petitioner : Mr.M.Subash Babu For the Respondent : No appearance ORDER The revision petitioner herein is the accused in S.T.C.No.3289 of 2006 on the file of the learned Judicial Magistrate No.III, Nagercoil. 2.Brief facts leading to the filing of this revision are that the petitioner herein borrowed a sum of ₹ 3,00,000/- from the complainant, Jose Jelris and promised to repay the same within a month. To discharge the debt, on 10.05.2006 he issued a post dated cheque bearing No.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provides that the appellate Court shall, after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that S. 385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the Pleader was also considered sufficient since he was representing the appellant. So also S.386 provides for a hearing to be given to the appellant or his lawyer, if he is present, and both need not be heard. It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Ss.385-386 of the Code. The law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointed out by the Hon'ble Supreme Court in Bani Singh's case cited above, the appellate Court cannot adjourn the case, if the counsels failed to appear or refused to appear, when the matter is listed. Law expects that the appellate Court should dispose of the appeal on meirt. In the absence of the counsels, it need not dismiss the appeal for non-prosecution 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 of the Hon'ble Apex Court rendered in Ram Naresh Yadav v. St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the loan availed, he gave signed cheque and pronote to Patchaimuthu, father of the complainant. Patchaimuthu has set up his son to initiate the present prosecution. Since the accused has satisfactorily discharged burden of presumption, the Court has dismissed the appeal against the acquittal confirming the order of acquittal by the Courts below, holding that when two views are possible, the view in favour of the accused would merit consideration. Thus, the facts in P.Manivel v. T.Seenivasan reported in 2018(1)MWN (Cr.) DCC 97 (Mad.) , cited supra by the learned counsel for the revision petitioner, is that the accused has taken a defence that the money actually was borrowed not from the complainant, but from the father of the complainant. As a security, he gave a cheque, which was misused by the complainant, by filling up his name and lodging a complaint under Section 138 of the Negotiable Instruments Act. The Courts below have accepted his defence and while considering the appeal against acquittal, the High Court has held that by preponderance of probability, the accused has discharged the burden and the Courts below have accepted the defence and acquitted the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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