CHRISTOPHER RAJversusK VIJAYAKUMAR

                        [2019] 9 S.C.R. 61                             61


                        CHRISTOPHER RAJ                                A
                                  v.
                         K VIJAYAKUMAR
                (Criminal Appeal Nos. 986-987 of 2019)
                            JULY 05, 2019                              B
          [R. BANUMATHI AND A.S. BOPANNA, JJ.]
      Negotiable Instruments Act, 1881: s.138 – Insufficiency of
funds – Dishonour of cheque – Trial court acquitted the appellant-
accused – In appeal by complainant before High Court, there was
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no representation for the appellant-accused – Upon hearing the
complainant, High Court set aside the order of acquittal and
convicted appellant-accused under s.138 of the Act – On appeal,
held: Admittedly, the appellant-accused did not appear in the
criminal appeal before the High Court – When the accused did not
enter appearance in the High Court, High Court should have issued      D
second notice to him or taken an assistance of amicus curiae –
High Court should not have decided the case on merits, without
appointing any counsel as amicus curiae, moreso when the
appellant had the benefit of acquittal – Therefore, High Court erred
in reversing the acquittal without affording any opportunity to the
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appellant-accused or by appointing an amicus curiae to argue the
matter on his behalf – Matter remitted to High Court for
consideration afresh – Natural justice.
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos.986-987 of 2019.
                                                                       F
       From the Judgment and Order dated 06.07.2018 and 23.06.2018
of the Madurai Bench of Madras High Court in Crl.A. (MD) No. 608 of
2007
       S. Nagamuthu, Sr. Adv., M. P Parthiban, A.S. Vairawan Advs.
for the Appellant.                                                     G
      Col. Pahlad Singh Sharma, Sushil Kumar Sharma, Jagdev Singh
Gulliya, Krishna Kant Shukla, Z. U. Khan, Kisalaya Shukla, Advs. for
the Respondent.

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                                61
62            SUPREME COURT REPORTS                          [2019] 9 S.C.R.


A          The Order of the Court was passed by
           R. BANUMATHI, J.
           1. Leave granted.
           2. The appellant-accused has preferred these appeals challenging
B    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.

C          3. Brief facts which led to filing of these appeals are as follows:-
             The appellant-accused and the respondent-complainant are
     friends. On 12.08.2001, the appellant-accused borrowed a sum of
     Rs.30,000/- from the respondent-complainant. The appellant-accused
     has issued a post-dated cheque drawn on Kuzhithurai Canara Bank dated
D    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
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     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
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     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
G    on those findings, the trial court acquitted the appellant-accused.
           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
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            CHRISTOPHER RAJ v. K VIJAYAKUMAR                                 63
                    [R. BANUMATHI, J.]

that the cheque was returned due to “insufficient funds” and not “as         A
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
                                                                             B
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              C
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.
      8. The respondent-complainant though served, has not entered           D
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.                             E
       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            F
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       G
amicus curiae to argue the matter on his behalf.
       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.
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64              SUPREME COURT REPORTS                       [2019] 9 S.C.R.


A    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.
B           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.


C    Devika Gujral                                              Appeal allowed.




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