CHRISTOPHER RAJ versus K VIJAYAKUMAR

Citation: [2019] 9 S.C.R. 61 · Decided: 05-07-2019 · Supreme Court of India · Bench: R. BANUMATHI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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             CHRISTOPHER RAJ
    v.
   K VIJAYAKUMAR
 (Criminal Appeal Nos. 986-987 of 2019)
        JULY 05, 2019
 [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
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
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
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.
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.
Col. Pahlad Singh Sharma, Sushil Kumar Sharma, Jagdev Singh
Gulliya, Krishna Kant Shukla, Z. U. Khan, Kisalaya Shukla, Advs. for
the Respondent.
[2019]  9 S.C.R. 61
  61
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SUPREME COURT REPORTS
[2019] 9 S.C.R.
The Order of the Court was passed by
R. BANUMATHI, J.
1. 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
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.
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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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 befor

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