CHRISTOPHER RAJ versus K VIJAYAKUMAR on 5 July 2019

1. Leave granted.

2. The appellant-accused has preferred these appeals challengingBthe orders passed by the High Court of Madras dated 06.07.2018 and23.06.2018 in Crl. A (MD) No.608 of 2007, by which the High Court hasreversed the acquittal of the appellant-accused and convicted him underSection 138 of the Negotiable Instruments Act and imposed a fine ofRs.60,000/- in default to undergo simple imprisonment for six months.

C3. Brief facts which led to filing of these appeals are as follows:- The appellant-accused and the respondent-complainant arefriends. On 12.08.2001, the appellant-accused borrowed a sum ofRs.30,000/- from the respondent-complainant. The appellant-accusedhas issued a post-dated cheque drawn on Kuzhithurai Canara Bank dated04.09.2003 of Rs.30,000/-.D

4. The respondent-complainant presented the cheque in his Co-Operative Bank Account on 16.01.2004 for collection. However, thecheque was returned from the bank on 19.01.2004 due to insufficientfunds. The respondent-complainant sent a statutory notice on 12.02.2004to the appellant-accused. Thereafter, the respondent-complainant filedEthe complaint before the Judicial Magistrate No.1, Kuzhithurai.

5. In the trial court, PW-1 and PW-2 were examined and ExhibitsP-1 to P-7 were marked. The appellant-accused has not adduced anyevidence. Upon consideration of the evidence, the trial court held thatthe amount was borrowed in the year 2001 and the cheque was presentedFfor collection after three years of borrowing the loan. The trial courttook the view that the cheque was valid for six months and that thecheque was not presented within a period of six months from the date ofpayment of the amount and issuance of cheque. The trial court held thatthe charges levelled against the appellant-accused are not proved andGon those findings, the trial court acquitted the appellant-accused.

6. Being aggrieved, the respondent-complainant preferred appealbefore the High Court. In the appeal so preferred by the respondentbefore the High Court, there was no representation for the appellant-accused. Upon hearing the respondent-complainant, the High Court held H

that the cheque was returned due to “insufficient funds” and not “astime barred cheque”. The High Court further found that the respondent-complainant has proved the statutory requirements and held that thefindings of the trial court is erroneous. The High Court set aside thejudgment of the trial court and convicted the appellant-accused underSection 138 of the Negotiable Instruments Act and imposed a fine ofRs.60,000/- in default to undergo simple imprisonment for six months.Being aggrieved, the appellant-accused is before us.

7. We have heard Mr. S. Nagamuthu, learned senior counselappearing on behalf of the appellant-accused. The learned senior counselappearing on behalf of the appellant has drawn our attention to thejudgment in K.S. Panduranga vs. State of Karnataka (2013) 3 SCC721 and submitted that in the absence of the counsel for the appellant-accused, the High Court should not have decided the appeal on meritsand prayed for remitting the matter to the High Court for freshconsideration on merits.

8. The respondent-complainant though served, has not enteredappearance in this appeal. The Supreme Court Legal Services Committeehas nominated Col. Pahlad Singh Sharma, Advocate to appear and argueon behalf of the respondent. We have heard Col. Pahlad Singh Sharmaappearing on behalf of the respondent-complainant and perused theimpugned judgment and other materials on record.

9. Admittedly, the appellant-accused did not appear in the criminalappeal before the High Court. When the accused has not enteredappearance in the High Court, in our view, the High Court should haveissued second notice to the appellant-accused or the High Court LegalServices Committee to appoint an advocate or the High Court couldhave taken the assistance of amicus curiae. When the accused wasnot represented, without appointing any counsel as amicus curiae todefend the accused, the High Court ought not to have decided the criminalappeal on merits; more so, when the appellant-accused had the benefitof the acquittal. The High Court erred in reversing the acquittal withoutaffording any opportunity to the appellant-accused or by appointing anamicus curiae to argue the matter on his behalf.

10. In the result, the impugned orders of the High Court inCrl.A.(MD) No. 608 of 2007 dated 06.07.2018 and 23.06.2018 are setaside and these appeals are allowed and the Criminal Appeal (MD) No.

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A608 of 2007 shall stand restored. The matter is remitted to the MaduraiBench of Madras High Court to consider the matter afresh. The appellantshall appear before the Madurai Bench of the Madras High Court on26.08.2019. The High Court shall issue notice to the respondent-complainant viz. K. Vijayakumar informing him about the date of hearing.

B11. The High Court shall afford sufficient opportunity to bothparties and decide the matter afresh in accordance with law. We makeit clear that we have not expressed any opinion on the merits of thematter.

CDevika Gujral

Appeal allowed.

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