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2018 Supreme(Mad) 2200
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
G. JAYACHANDRAN, J.
R. Jacob Pon Paulraj - Petitioner
Versus
Jose Jelris - Respondent
Crl. R.C(MD)No.238 of 2018 and Crl. M.P(MD)No.3093 of 2018
Decided On : 13-08-2018
For the Petitioner: Mr. M. Subash Babu.
The main legal point established is the requirement for the appellate court to give a hearing to the appellant or his counsel before disposal of the appeal on merits, as per Sections 385-386 of the Code of Criminal Procedure, and the burden on the accused to probabilize the defense to discharge the presumption under Section 138 of the Negotiable Instruments Act.
Headnote:
Cheque Bounce - Negotiable Instruments Act - Section 138 - Summary: The court discussed the legal provisions of Section 138 of the Negotiable Instruments Act and the burden of proof on the accused to discharge the presumption. It highlighted the requirement for the appellate court to give a hearing to the appellant or his counsel before disposal of the appeal on merits, as per Sections 385-386 of the Code of Criminal Procedure. The court also emphasized the option for the court to dispose of the appeal on merit in the absence of counsel and the need for the accused to probabilize the defense to discharge the burden of presumption.
Fact of the Case:
The accused borrowed money and issued a post-dated cheque, which bounced. The trial court found him guilty, and the appellate court confirmed the conviction. The accused contended that the appeal was disposed of erroneously in the absence of counsel and that the defense exhibits were not considered.
Finding of the Court:
The court found that the appellate court was justified in disposing of the appeal on merit in the absence of counsel, as per legal provisions. It held that the defense presented by the accused did not probabilize the reverse presumption, and thus, the conviction was upheld.
Issues: The issues revolved around the disposal of the appeal in the absence of counsel, the burden of proof on the accused to discharge the presumption under Section 138 of the Negotiable Instruments Act, and the validity of the defense presented by the accused.
Ratio Decidendi: The court emphasized the appellate court's duty to give a hearing to the appellant or his counsel before disposal of the appeal on merits, as per Sections 385-386 of the Code of Criminal Procedure. It also highlighted the need for the accused to probabilize the defense to discharge the burden of presumption under Section 138 of the Negotiable Instruments Act.
Final Decision: The court dismissed the revision petition and confirmed the concurrent finding of conviction and sentence passed by the lower courts.
1. The revision petitioner herein is the accused in S.T.C.No.3289 of 2006 on the file of the learned Judicial Magistrate No.III, Nagercoil.
2. Brief facts leading to the filing of this revision are that the petitioner herein borrowed a sum of Rs.3,00,000/- from the complainant, Jose Jelris and promised to repay the same within a month. To discharge the debt, on 10.05.2006 he issued a post dated cheque bearing No.144606, dated 12.07.2006. On presentaiton of the cheque for collection, it was returned for insufficiency of funds and payment stopped. Statutory notice, dated 21.07.2006 issued by the complainant was received by the petitioner/accused on 22.07.2006. He has not sent reply, inspite of receiving the notice. The Trial Court found him guilty, sentenced him to undergo imprisonment for three months and directed to pay a fine of Rs.5,000/-, in default, to undergo one month rigorous imprisonment. Appeal was preferred by him before the learned Sessions Judge, Kanyakumari at Nagercoil in C.A.No.75 of 2008. The same was dismissed on 17.02.2018 confirming the order passed by the learned Judicial Magistrate No.III, Nagercoil, in S.T.C.No.3289 of 2006, dated 19.05.2008.
3. Learned counsel for the revision petitioner contended that the learned appellate Judge disposed the appeal in the absence of counsels representing the appellant and the respondent. Without affording opportunity and without considering the defence exhibits which rebutted the presumption against the accused, the appellate Court has erroneously dismissed the appeal and confirmed the Judgment of conviction and sentence passed by the Trial Court.
4. Learned counsel for the revision petitioner would heavily harp on the point that the appellate Court should not have decided the appeal in the absence of the counsel. In support of the said submission, he would rely upon the Judgment of the Hon'ble Supreme Court in Ajay v. State of Haryana reported in 2001(3) Crimes 194 (SC). In the said case, the learned counsel for the appellant was not able to attend the Court on the date of hearing. The High Court in his absence disposed the appeal based on the records. Taking note of the fact that the Advocate has failed to note the date of hearing and he has satisfactorily explained for his non-appearance and why they were not able to appear before the Court, the Hon'ble Supreme Court set aside the impugned Judgment, to offer one more chance to argue the appeal. In this case, on a perusal of the Judgment passed by the appellate Court, this Court finds that the matter had been pending for ten years and the appellate Court after recording that the case is pending from 2008 and there was no progress for the past ten years, following the Judgment of the Hon'ble Supreme Court in Bani Singh v. State of UP reported in AIR 1996 SC 2439, wherein the Hon'ble Apex Court has held that if the counsels are absent, the Court is not bound to adjourn the matter and it can dispose of the appeal after perusing the records and Judgment of the Trial Court, decided the case on merit by dismissing the appeal. In Paragraph Nos.15 and 16 of the Judgment in Bani Singh's case, the Hon'ble Supreme Court has held as follows:
“15. ..., the law expects the Appellate Court to give a hearing to the appellant or his counsel, if he is present, and to the public prosecutor, if he is present, before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the Appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provides that the appellate Court shall, after perusing the record, hear the appellant or his pleader, if he appears. It will be noticed that S.385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the Pleader was also considered sufficient since he was repr
