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

O R D E R

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:-

The appellant-accused and the  respondent-complainant  are

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.

2

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.

3

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.  

4

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

5