Case at a Glance
A man convicted for dishonour of a Rs 1,00,000 cheque appealed to the Sessions Court, Mandi. When no one appeared for him on two dates, the appellate court heard only the complainant’s counsel and dismissed the appeal on merits. Justice Rakesh Kainthla of the Himachal Pradesh High Court set aside that judgment, holding, on the basis of Mohd. Sukur Ali v. State of Assam, (2011) 02 SC CK 0070, that a criminal appeal should not be decided against an accused in the absence of counsel, and that doing so violates Article 21. The appeal has been remanded, with liberty to appoint legal aid counsel if he remains unrepresented.
The respondent filed a complaint under Section 138 of the Negotiable Instruments Act before the Chief Judicial Magistrate, Mandi, alleging that the petitioner had issued a cheque for Rs 1,00,000 in discharge of a legal liability, which was dishonoured for insufficient funds, and that he had not paid despite a legal notice. The accused pleaded not guilty and led no defence evidence. By judgment of 24 April 2025 and sentence of 26 April 2025, the trial court convicted him and sentenced him to one year’s simple imprisonment and Rs 1,50,000 as compensation, with three months’ simple imprisonment in default.
He appealed to the Sessions Judge, Mandi. On 22 January 2026, no one appeared for him and the matter was adjourned to 16 February 2026. On that date also nobody appeared for him; the appellate court heard the complainant’s counsel, reserved judgment and dismissed the appeal on 23 February 2026. The accused filed a criminal revision in the High Court, arguing that the appeal should not have been heard in his absence and that legal aid counsel should have been appointed. The complainant contended that the appellate court had no option but to proceed.
The Key Question Before the Court
Can an appellate court decide a criminal appeal on merits and dismiss it when neither the accused nor his counsel is present, without appointing an amicus or legal aid counsel?
No Decision Against an Unrepresented Accused
Justice Rakesh Kainthla first noted that revisional jurisdiction is limited — “a revisional court does not act as an appellate court” — citing Kuntegowda v. Thurubaiah, State of Maharashtra v. Jagmohan Singh Kuldip Singh Anand, (2004) 08 SC CK 0124, State of Kerala v. Puttumana Illath Jathavedan Namboodiri, (1999) 02 SC CK 0014 and Sanjabij Tari v. Kishore S. Borcar, (2025) 09 SC CK 0342. But a procedural illegality that defeats a fair hearing falls squarely within revision. The Court then relied on Mohd. Sukur Ali v. State of Assam, (2011) 4 SCC 729: if the accused’s counsel is absent, the court should not decide the case against him but should appoint an amicus curiae. In the Court’s words, “a criminal case should not be decided against the accused in the absence of counsel.”
Reading this with Maneka Gandhi v. Union of India, (1978) 01 SC CK 0026, the Court held that deciding a criminal case without counsel for the accused results in a violation of Article 21. It also referred to A.S. Mohammed Rafi v. State of Tamil Nadu, (2010) 12 SC CK 0037, L. Laxmikanta v. State, (2015) 02 SC CK 0075, Christopher Raj v. K. Vijayakumar, (2019) 07 SC CK 0021 and K. Muruganandam v. State of Tamil Nadu, which hold that an appeal should not be decided on merits, or dismissed for non-representation, without appointing an amicus. Applying these, the Court found that “the Appellate Court only heard learned counsel for the respondent, which put the appellant/accused at a serious disadvantage”, and that it “erred in hearing the appeal on merits in the absence of the learned counsel for the accused.”
What the Court Actually Held
- A criminal appeal should not be decided against the accused in the absence of his counsel; the court should appoint an amicus curiae or legal aid counsel (Mohd. Sukur Ali v. State of Assam).
- Deciding a criminal case without the accused being represented violates the right to a fair procedure under Article 21 (Maneka Gandhi v. Union of India).
- Hearing only the complainant’s counsel and dismissing the appeal on merits put the accused at a serious disadvantage; this is a ground for interference even in limited revisional jurisdiction.
- The Sessions Court’s judgment of 23 February 2026 was set aside and the appeal remanded for fresh decision after hearing the accused; if he is unrepresented despite service, the appellate court may appoint legal aid counsel. Parties are to appear on 3 December 2026.
Why This Judgment Matters
- Cheque-bounce convictions carry real jail terms. This ruling ensures that an appeal against conviction is not lost merely because counsel did not turn up.
- It reminds appellate courts that their duty is to decide the appeal with the accused represented — by amicus if necessary — rather than dismissing it in default or on a one-sided hearing.
- It applies a line of Supreme Court precedent on the right to counsel to an everyday Section 138 NI Act appeal.
What Should Advocates Take Away From the Judgment?
For Accused Persons
- If your appeal was decided when your lawyer was absent and only the other side was heard, you may challenge it on this ground.
- Keep in touch with your counsel and the court; on remand, the court can appoint legal aid counsel if you remain unrepresented.
- The remand restores the appeal; it is not a finding that you are innocent.
For Counsel and Courts
- Cite Mohd. Sukur Ali v. State of Assam, Christopher Raj v. K. Vijayakumar and K. Muruganandam v. State of Tamil Nadu where criminal appeals are decided without representation.
- Appellate courts faced with an absent appellant’s counsel should appoint amicus or legal aid counsel before deciding on merits.
- In revision, frame the challenge as a procedural illegality affecting Article 21, not as a re-appreciation of evidence.
Key Takeaways
- A criminal appeal cannot be decided against an unrepresented accused on a one-sided hearing.
- Courts should appoint amicus or legal aid counsel instead.
- The Sessions Court’s dismissal of the cheque-bounce appeal was set aside and the appeal remanded.
- Parties must appear before the appellate court on 3 December 2026.
Frequently Asked Questions
Did the High Court acquit the accused?
No. It set aside only the appellate judgment and sent the appeal back for a fresh hearing; the merits of the cheque case remain to be decided by the Sessions Court.
What should a court do if the accused’s lawyer does not appear?
According to Mohd. Sukur Ali v. State of Assam, relied on by the High Court, it should not decide the case against the accused but should appoint an amicus curiae or legal aid counsel.
Does this apply to cheque-bounce appeals?
Yes. This case arose from a conviction under Section 138 of the Negotiable Instruments Act, and the principle was applied to the appeal against that conviction.
Conclusion
The Himachal Pradesh High Court’s ruling is a reminder that the right to be heard through counsel is part of Article 21, even in a cheque-bounce appeal. An appeal against conviction decided after hearing only the complainant cannot stand; the appellate court must ensure the accused is represented, if necessary by legal aid counsel.
Practical takeaway: If a criminal appeal is decided on merits while the accused is unrepresented, seek its setting aside relying on Mohd. Sukur Ali v. State of Assam.
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