The Supreme Court 5th July 2019 held that when an accused in a case did not enter an appearance before High Court, the High Court should not have decided the case on merits. Instead, it should have issued a second notice to the accused or directed the High Court Legal Services Committee to appoint an advocate or taken the assistance of an Amicus Curiae.
The judgment was rendered by a Bench of Justices R Banumathi and AS Bopanna in an appeal preferred by the accused. The accused had challenged the orders passed by the Madras High Court by which the High Court has reversed the acquittal of the appellant-accused and convicted him under Section 138 of the Negotiable Instruments Act.
The appellant-accused and the respondent-complainant were friends. The appellant-accused borrowed a sum of Rs. 30,000 from the respondent-complainant. The appellant-accused issued a post-dated cheque drawn on Canara Bank.
The respondent-complainant presented the cheque in his Cooperative Bank Account for collection. However, the cheque was returned from the bank due to insufficient funds. The respondent-complainant sent a statutory notice to the appellant-accused. Thereafter, the respondent-complainant filed the complaint before the Judicial Magistrate.
After examining 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 the cheque. It, therefore, held that the charges levelled against the appellant-accused are not proved and on those findings, the trial court acquitted the appellant-accused.
Being aggrieved, the respondent-complainant preferred appeal before the High Court. In the appeal 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 are erroneous. The High Court, therefore, set aside the judgment of the trial court and convicted the appellant-accused under Section 138 of the Negotiable Instruments Act.
This led to the current appeal before the Supreme Court.
Senior Counsel S Nagamuthu appearing on behalf of the appellant placed reliance on the judgment in KS Panduranga vs. the 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. He, therefore, prayed for remitting the matter to the High Court for fresh consideration on merits.
Interestingly, before the Supreme Court, the respondent-complainant though served, did not enter appearance. The Supreme Court Legal Services Committee, therefore nominated Advocate Pahlad Singh Sharma who appeared and argued for the respondent.
The Court after hearing the parties held that when the accused had not entered an appearance, the Court should not have decided the case on merits without appointing an Amicus Curiae to defend the accused. This was more so since the accused had the benefit of acquittal by the trial court. The High Court should have issued a second notice to the appellant-accused or asked High Court Legal Services Committee to appoint an advocate or the High Court could have taken the assistance of amicus curiae, the Supreme Court said.
Thus, the Court held that 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.
It, therefore, allowed the appeal and remitted the matter to the High Court for consideration on merits.
“The High Court shall afford sufficient opportunity to both parties and decide the matter afresh in accordance with law”, the Supreme Court made it clear.