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HC Cannot Reverse Acquittal Without Affording Opportunity Of Hearing To Accused Or By Appointing An Amicus Curiae: SC
It has to be remarked right at the outset before dwelling on other aspects that in a latest, landmark and laudable judgment titled Christopher Raj Vs K Vijayakumar in Criminal Appeal Nos. 986-987 of 2019 (Arising out of SLP (Crl.) Nos. 7717-7718 of 2018) delivered on July 5, 2019, the Supreme Court has observed that the High Court in a criminal appeal cannot reverse the acquittal without affording any opportunity of hearing to the accused or by appointing an amicus curiae to argue the matter on his behalf if he does not enter appearance. The Apex Court Bench found favour with the contention that in the absence of the counsel for the accused, the High Court should not have decided the appeal on merits. Very rightly so! In doing so, the Apex Court Bench has adhered to the legal maxim “audi alteram partem” which clearly means that, “listen to the other side” or “let the other side be heard as well”. It enunciates that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them.
To start with, the ball is set rolling first and foremost in para 1 of this landmark judgment authored by Justice R Banumathi for herself and Justice AS Bopanna by observing that, “Leave granted”. Para 2 then illustrates the reason for the appellant-accused preferring the appeal while stating that, “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.”
While stating the facts, it is then observed in para 3 that, “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/-.”
Furthermore, it is then stated in para 4 that, “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.”
Going forward, para 5 then spells out that, “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.”
Not stopping here, it is then pointed out in para 6 that, “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.”
To put things in perspective, it is then held in para 7 by the Apex Court Bench that, “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.”
Moving on, it is then observed in para 8 that, “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.”
More significantly, it is then held in para 9 without mincing any words 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 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.”
What’s more, it is then held in para 10 that, “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 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.”
To conclude, it is then finally held in para 11 that, “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.”
All said and done, this noteworthy and latest judgment delivered by the Apex Court has served to sent out a very loud and clear message to all the High Courts in our country. It has minced no words in holding clearly, categorically and convincingly that the High Court erred in reversing the acquittal without affording an opportunity to the appellant-accused or by appointing an amicus curiae to argue the matter on this behalf. No doubt, before affording the order of acquittal, the least the High Court ought to have done was to afford an opportunity to the appellant-accused to present his version or ought to have appointed an amicus curiae to argue the matter on his behalf but the High Court did none of the above! This alone explains why the Supreme Court Bench in this notable case found favour with the contention of the appellant-accused and therefore set aside the order and remitted the matter to the High Court to decide the matter afresh in accordance with law.
