2025 (6) TMI 672 - HC - Indian Laws

Conviction and sentence initiated under Section 138 of the Negotiable Instruments Act 1881 - enhancement of the sentence and compensation - ex parte decision - violation of principle of natural justice as enshrined under Articles 14 and 21 of the Constitution of India - Right to legal representation - non-representation or default of the advocate - HELD THAT - Considering the provisions and propositions laid down by the Hon ble Supreme Court in Subhash Chand Vs. State (Delhi Administration) 2013 (1) TMI 943 - SUPREME COURT it is clear that when the victim is aggrieved by and dissatisfied with the judgment of acquittal or convicting for a lesser offence or imposing inadequate compensation victim shall have a right to prefer an appeal against any order passed by the Court and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court. The answer of the first question is in negative. Therefore revision is not maintainable. In so far as to the second question is concerned it is not disputed by the parties that the Learned Additional Sessions Judge Fast Track Court II City Sessions Court Calcutta dismissed the appeal on merits though no appellant was present or represented by any learned advocate on the date of hearing. The principle of natural justice has been ignored at the time of disposal of Appeal. It is settled principle of law that any criminal appeal should not be dismissed on merits or on the ground of default in absence of representation by learned advocate for the appellant (s). In this regard the Hon ble Supreme Court time and again reiterates that a court cannot dismiss the appeal filed by an appellant/accused merely because of non-representation or default of the advocate for the appellant/accused. If the accused does not appear through counsel appointed by him/her the Court is obliged to proceed with the hearing of the case only after appointing amicus curiae. This Court relies a judgment passed in the case of K. Muruganandam Ors. Vs. State Rep. by the Deputy Superintendent of Police and Anr. 2021 (8) TMI 1438 - SUPREME COURT . Thus the Criminal Revisional application being CRR No. 2782 of 2018 is thus dismissed and CRR No. 3491 of 2019 is thus allowed. Consequently connected applications if any are also thus disposed of. Accordingly the impugned judgment dated 19.09.2019 passed by the Learned Additional Sessions Judge Fast Track Court II City Sessions Court Calcutta in Criminal Appeal No. 79 of 2019 thereby affirmed the judgment of conviction and sentence dated 4th August 2018 passed by the Learned Metropolitan Magistrate 14th Court Calcutta in connection with Case No. CS-0053954 of 2016 is hereby set aside. Interim order if any stands vacated. The Appeal being Criminal Appeal No. 79 of 2019 is remanded back to the Appellate Court below with a direction to dispose of on its own merits independently and in accordance with law after affording an opportunity of hearing to the parties. In the event none represent the appellant/convict the same may be disposed of after appointing amicus curiae. I also make it clear that this court does not get an opportunity to enter into the merits of the instant case as such Appellate Court shall not influence by any of the observation whatsoever made herein above. The petitioner/complainant may also take recourse of his grievances by filing appeal in accordance with law if so advised.

Summary

Two criminal revisional applications arising from the same facts and impugned judgments under Section 138 of the Negotiable Instruments Act, 1881, were taken up together for disposal. The first application, filed by the complainant under Section 401 read with Section 482 of the Code of Criminal Procedure, 1973 (CrPC), sought enhancement of sentence and compensation awarded by the trial court. The second application, filed by the accused/convict under Section 482 CrPC, challenged the appellate court's dismissal of his criminal appeal against conviction and sentence.

The core legal issues considered by the Court were:

1. Whether a revision application is maintainable against an order of acquittal or against an order imposing an allegedly inadequate fine or compensation in cases under Section 138 of the NI Act, especially when a statutory right of appeal exists under Section 372 of the CrPC.

2. Whether the dismissal of the criminal appeal by the Additional Sessions Judge in the absence of the accused or his counsel violated the principles of natural justice and was liable to be set aside.

Issue 1: Maintainability of Revision Against Orders of Acquittal or Inadequate Fine/Compensation

The relevant legal framework includes Section 138 of the NI Act, which prescribes punishment by imprisonment, fine, or both, with the fine potentially extending to twice the amount of the cheque. Section 143 of the NI Act provides for summary trials by Magistrates with power to impose fines exceeding statutory ceilings under the CrPC. Section 372 CrPC restricts appeals to those expressly provided by the Code or other laws but grants victims the right to appeal against acquittals, convictions for lesser offences, or imposition of inadequate compensation. Section 482 CrPC preserves the inherent powers of the High Court to prevent abuse of process or secure ends of justice. Section 401 CrPC deals with revisional jurisdiction.

Precedents relied upon include the Supreme Court's rulings that the right of appeal is statutory, must be strictly construed, and cannot be assumed absent explicit provision (Competition Commission of India v. Steel Authority of India Ltd.). The Court also referred to the decision in Joseph Stephen v. Santhanasamy, which held that where a statutory right of appeal exists and is not exercised, revision is not maintainable at the instance of the party who could have appealed. Similarly, the Supreme Court in Subhash Chand v. State clarified the limited scope of appeals against acquittals and the requirement of special leave in complaint cases.

The Court analyzed the nature of compensation vis-`a-vis fine under the CrPC and IPC. Compensation awarded under Section 357 CrPC is distinct from a fine, which is a sentence under Section 53 IPC. However, judicial interpretation has created a legal fiction treating compensation as fine for the purpose of imposing imprisonment in default of payment (R. Vijayan v. Baby). This fiction extends to appellate remedy, making compensation coupled with imprisonment in default appealable under Sections 374 and 376 CrPC (P.S. Mitra v. Manor Travels Pvt. Ltd.).

Applying these principles, the Court held that the trial court's order was a fine-cum-compensation order, with the fine element being appealable. The complainant's revisional application for enhancement of compensation was not maintainable because the statutory remedy of appeal under Section 372 CrPC exists for inadequate compensation. Thus, revision cannot substitute for appeal where such appeal lies. The Court emphasized that the right to appeal is statutory and must be exercised accordingly.

Issue 2: Dismissal of Appeal in Absence of Accused or Counsel and Violation of Natural Justice

The accused's revision challenged the appellate court's dismissal of his criminal appeal without his presence or representation by counsel. The accused contended that this violated the audi alteram partem principle, a fundamental tenet of natural justice enshrined under Articles 14 and 21 of the Constitution of India, which guarantees the right to a fair hearing.

The Court referred to authoritative precedents including Maneka Gandhi v. Union of India, which underscored the necessity of fair hearing before passing judgment in an appeal. It also relied on the Supreme Court's ruling in K. Muruganandam v. State, which held that a criminal appeal cannot be dismissed merely for non-representation or default of the accused's advocate. Instead, the court must appoint amicus curiae before proceeding in such absence.

The complainant's counsel argued that multiple opportunities were granted to the accused to be represented, but he failed to appear despite filing hazira (presence) through counsel. The appellate court, therefore, proceeded to decide on merits. The Court, however, found that dismissal of appeal on merits without hearing the accused or his counsel was contrary to established principles of natural justice. The Court held that the appeal dismissal was void and liable to be set aside.

Consequently, the Court set aside the appellate court's judgment and remanded the appeal for fresh adjudication, directing that the accused be afforded a proper opportunity of hearing. If the accused again fails to appear or be represented, the appellate court must appoint an amicus curiae before proceeding.

Significant Holdings and Core Principles

The Court succinctly stated:

"It is settled principle of law that any criminal appeal should not be dismissed on merits or on the ground of default in absence of representation by learned advocate for the appellant(s). If the accused does not appear through counsel appointed by him/her, the Court is obliged to proceed with the hearing of the case only after appointing amicus curiae."

The Court also held:

"The right of appeal is a statutory right and no party has a right to file appeal except in accordance with the prescribed procedure. Such right cannot be assumed or inferred by way of interpretation."

Further, the Court emphasized that:

"A compensation which is treated as a fine in terms of Section 64 of the IPC and a direction for imprisonment is given in default of payment of such compensation is appealable under Section 374 read with Section 376 CrPC as if it was a 'sentence of fine' for the purposes of such appellate remedy."

The Court's final determinations were:

1. The complainant's revision application for enhancement of compensation under Section 401 read with Section 482 CrPC was dismissed as not maintainable, given the statutory right of appeal under Section 372 CrPC.

2. The accused's revision application challenging the dismissal of appeal in his absence was allowed. The appellate court's judgment was set aside, and the appeal was remanded for fresh hearing with due opportunity to the accused, including appointment of amicus curiae if necessary.