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Judgment
N. Dhinakar, J.—This revision challenges the conviction and sentence imposed upon the Petitioner u/s 489(c) I.P.C. The Petitioner was tried before the learned Assistant Sessions Judge, Virudhunagar, u/s 489(c) I.P.C. on an allegation that at 4.00 p.m. on 16.2.92 he was found in possession of 538 currency notes of Rs. 10/- denomination. The learned Magistrate, accepted the prosecution version and convicted and sentenced him to suffer two years R.I. Thereafter, the Petitioner preferred an appeal and the same was dismissed. Hence, the present revision.
When the revision was taken up for hearing before this Court on 15.6.2001, there was no representation and therefore, the same was directed to be posted in the list under the caption Default Cases to-day, that is, the next date of hearing. Even to-day, there is no representation. As this being a revision. I have decided to peruse the papers and pass orders.
I have perused the order of the Courts below and also heard the learned Government Advocate. I have also perused the grounds raised in this revision.
A perusal of the judgment of the appellate Court shows that the Petitioner filed an appeal, which was adjourned to 12.1.99 and then to 28.1.99. As the Petitioner was not present on 28.1.99, a warrant was issued and he surrendered before the Court on 11.2.99, after filing a petition to recall the warrant. Thereafter, he did not appear on 26.2.99. to which date, the appeal was adjourned- The appellate Court, once again issued a non-bailable warrant and on 1.3.99, finding the Appellant absent, heard the learned Public Prosecutor and then, after persuing the records, delivered the judgment confirming the conviction.
Time and again the Supreme Court and this Court has held that once an appeal is filed, the appellate Court cannot dismiss the appeal by merely hearing the Public Prosecutor and perusing the records. Even if it is to be assumed that the Court had taken utmost care to go through the records to find out whether there are any merits in the appeal, still the Appellant should get an opportunity for arguing his appeal by an advocate. If the Appellant is found absent continuously ,then the appellate Court could have engaged a counsel appointed by Legal Aid Cell and allowed him to argue the same instead of hearing the Public Prosecutor and then dismiss the appeal.
As the Appellant did not get an opportunity to argue the appeal through an advocate, the matter is remanded back to the Principal Sessions Court. Virudhunagar at Srivilliputhur, for fresh hearing of the Petitioner and dispose of the appeal. The revision is disposed of with the above directions.