2019 (7) TMI 242 - SC - Indian Laws

Dishonor of Cheque - cheque was returned due to insufficient funds and not as time barred cheque - Section 138 of the Negotiable Instruments Act - HELD THAT - 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. The matter is remitted to the Madurai Bench of Madras High Court to consider the matter afresh.

Summary

Issues:
1. Appeal against the High Court's order convicting the appellant-accused under Section 138 of the Negotiable Instruments Act.
2. Lack of representation for the appellant-accused during the appeal before the High Court.
3. Failure of the High Court to appoint an amicus curiae or provide an opportunity for the appellant-accused to defend.

Analysis:
1. The appellant-accused challenged the High Court's decision convicting him under Section 138 of the Negotiable Instruments Act and imposing a fine of ?60,000. The case involved a post-dated cheque issued by the appellant-accused to the respondent-complainant, which bounced due to insufficient funds. The trial court had acquitted the appellant-accused, citing that the cheque was not presented within the valid period of six months. However, the High Court reversed the acquittal, finding the appellant guilty under Section 138. The Supreme Court set aside the High Court's orders and remitted the matter back to the High Court for fresh consideration.

2. During the appeal before the High Court, the appellant-accused was not represented, which was a crucial issue raised in the Supreme Court. The appellant's counsel argued that in the absence of representation, the High Court should not have decided the appeal on merits. The Supreme Court highlighted the importance of providing the appellant-accused with a fair opportunity to defend himself and criticized the High Court for not appointing an amicus curiae or issuing a second notice to ensure representation.

3. The failure of the High Court to appoint an amicus curiae or provide any opportunity for the appellant-accused to defend himself was a significant factor in the Supreme Court's decision. The Court emphasized that the appellant should have been given a chance to present his case, especially considering the benefit of acquittal he previously enjoyed. The Supreme Court found fault with the High Court for reversing the acquittal without affording the appellant-accused the opportunity to be heard. As a result, the Supreme Court allowed the appeal, set aside the High Court's orders, and directed the matter to be reconsidered by the High Court with proper representation and a fair hearing for both parties.