Christopher Raj vs K Vijayakumar

REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 986-987 OF 2019 (Arising out of SLP (Crl.) Nos.7717-7718 of 2018)

CHRISTOPHER RAJ ...Appellant

VERSUS

K VIJAYAKUMAR ...Respondent

ORDER

R. BANUMATHI, J.

Leave granted.

2. The appellant-accused has preferred these appeals

challenging the orders passed by the High Court of Madras dated

06.07.2018 and 23.06.2018 in Crl. A (MD) No.608 of 2007, by which

the High Court has reversed the acquittal of the appellant-accused

and convicted him under Section 138 of the Negotiable Instruments

Act and imposed a fine of Rs.60,000/- in default to undergo simple

imprisonment for six months.

3. Brief facts which led to filing of these appeals are as follows:- Signature Not Verified

The appellant-accused and the respondent-complainant are Digitally signed by MADHU BALA Date: 2019.07.05 16:43:20 IST Reason:

friends. On 12.08.2001, the appellant-accused borrowed a sum of

1 Rs.30,000/- from the respondent-complainant. The appellant-

accused has issued a post-dated cheque drawn on Kuzhithurai

Canara Bank dated 04.09.2003 of Rs.30,000/-.

4. The respondent-complainant presented the cheque in his Co-

Operative Bank Account on 16.01.2004 for collection. However, the

cheque was returned from the bank on 19.01.2004 due to

insufficient funds. The respondent-complainant sent a statutory

notice on 12.02.2004 to the appellant-accused. Thereafter, the

respondent-complainant filed the complaint before the Judicial

Magistrate No.1, Kuzhithurai.

5. In the trial court, PW-1 and PW-2 were examined and Exhibits

P-1 to P-7 were marked. The appellant-accused has not adduced

any evidence. Upon consideration of the evidence, the trial court

held that the amount was borrowed in the year 2001 and the

cheque was presented for collection after three years of borrowing

the loan. The trial court took the view that the cheque was valid for

six months and that the cheque was not presented within a period

of six months from the date of payment of the amount and issuance

of cheque. The trial court held that the charges levelled against the

appellant-accused are not proved and on those findings, the trial

court acquitted the appellant-accused.

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6. Being aggrieved, the respondent-complainant preferred

appeal before the High Court. In the appeal so preferred by the

respondent before the High Court, there was no representation for

the appellant-accused. Upon hearing the respondent-complainant,

the High Court held that the cheque was returned due to

“insufficient funds” and not "as time barred cheque". The High Court

further found that the respondent-complainant has proved the

statutory requirements and held that the findings of the trial court is

erroneous. The High Court set aside the judgment of the trial court

and convicted the appellant-accused under Section 138 of the

Negotiable Instruments Act and imposed a fine of Rs.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 counsel

appearing on behalf of the appellant-accused. The learned senior

counsel appearing on behalf of the appellant has drawn our

attention to the judgment in K.S. Panduranga vs. State of Karnataka

(2013) 3 SCC 721 and submitted that in the absence of the counsel

for the appellant-accused, the High Court should not have decided

the appeal on merits and prayed for remitting the matter to the High

Court for fresh consideration on merits.

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8. The respondent-complainant though served, has not entered

appearance in this appeal. The Supreme Court Legal Services

Committee has nominated Col. Pahlad Singh Sharma, Advocate to

appear and argue on behalf of the respondent. We have heard

Col. Pahlad Singh Sharma appearing on behalf of the

respondent-complainant and perused the impugned judgment and

other materials on record.

9. Admittedly, the appellant-accused did not appear in the

criminal appeal before the High Court. When the accused has not

entered appearance in the High Court, in our view, the High Court

should have issued second notice to the appellant-accused or the

High Court Legal Services Committee to appoint an advocate or the

High Court could have taken the assistance of amicus curiae. When

the accused was not represented, without appointing any counsel

as amicus curiae to defend the accused, the High Court ought not

to have decided the criminal appeal on merits; more so, when the

appellant-accused had the benefit of the acquittal. The High Court

erred in reversing the acquittal without affording any opportunity to

the appellant-accused or by appointing an amicus curiae to argue

the matter on his behalf.

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10. In the result, the impugned orders of the High Court in Crl.A.

(MD) No. 608 of 2007 dated 06.07.2018 and 23.06.2018 are set

aside and these appeals are allowed and the Criminal Appeal (MD)

No. 608 of 2007 shall stand restored. The matter is remitted to the

Madurai Bench of Madras High Court to consider the matter afresh.

The appellant shall appear before the Madurai Bench of the Madras

High Court on 26.08.2019. The High Court shall issue notice to the

respondent-complainant viz. K. Vijayakumar informing him about

the date of hearing.

11. The High Court shall afford sufficient opportunity to both

parties and decide the matter afresh in accordance with law. We

make it clear that we have not expressed any opinion on the merits

of the matter.

……...........................J. [R. BANUMATHI]

……...........................J. [A.S. BOPANNA] New Delhi;

July 05, 2019

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