2023 (2) TMI 1385 - HC - Indian Laws

Dishonour of Cheque - challenge to conviction and sentence order passed - summary trial of all offences under Chapter XVII of N.I. Act - applicability of provisions of Sections 262 to 265 of Cr.P.C. - HELD THAT - In the case on hand the evidence of respondent was recorded by the Trial Court in the absence of the petitioner but the petitioner did not appear before the Court which compelled the Court to hold that the petitioner had no cross examination of the respondent and posted the case for recording the statement of the petitioner under Section 313 of Cr.P.C. The petitioner did not again appear and therefore the Trial Court issued non-bailable warrant against him which due to various reasons could not be executed. The records of this case disclose that fullest opportunity was granted to the petitioner to participate in the trial. The Trial Court was therefore justified in passing a judgment based on the available material. There is no merit in the contention of the petitioner that the Trial Court committed an error in passing a judgment of conviction in the absence of the petitioner and therefore this revision petition lacks merit and the same is hereby dismissed. At this stage the learned counsel for the petitioner submits that the petitioner had already paid a sum of Rs. 10, 000/- to the respondent before the Trial Court and that the same may be considered while executing the order of sentence. If the petitioner has paid a sum of Rs. 10, 000/- being part of the fine the Trial Court is directed to take into the account the same at the time of executing the order of sentence. Conclusion - The summary trials under the N.I. Act do not require the accused s presence for recording evidence provided the Magistrate has not opted for a summons trial. The conviction and sentence imposed by the Trial Court upheld. Revision petition dismissed.

Summary

The judgment revolves around the conviction of the petitioner under Section 138 of the Negotiable Instruments Act, 1881, and the subsequent legal proceedings. The petitioner challenged the conviction and sentence imposed by the Trial Court, which was upheld by the Appellate Court, leading to the current revision petition.

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered in this case include:

• Whether the Trial Court erred in convicting the petitioner in his absence.
• Whether the evidence should have been recorded in the presence of the accused as per Section 273 of the Code of Criminal Procedure, 1973.
• Whether the Trial Court was justified in proceeding with a summary trial under the provisions of the Negotiable Instruments Act, 1881.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Conviction in Absence of the Petitioner

• Relevant Legal Framework and Precedents: The case discusses the applicability of summary trial procedures under Section 143 of the N.I. Act and the provisions of the Cr.P.C., particularly Section 273.
• Court's Interpretation and Reasoning: The Court noted that the N.I. Act provides for summary trials for offences under Section 138, unless the Magistrate decides otherwise. The absence of the petitioner did not necessitate converting the trial to a summons trial.
• Key Evidence and Findings: The petitioner failed to appear for cross-examination and the recording of his statement under Section 313 Cr.P.C., leading to the issuance of a non-bailable warrant.
• Application of Law to Facts: The Court found that the Trial Court acted within its jurisdiction by proceeding with the summary trial in the petitioner's absence, as his presence was not secured despite attempts.
• Treatment of Competing Arguments: The petitioner's argument that his presence was necessary was countered by the Amicus Curiae, who cited the provisions allowing for summary trials and the non-requirement of the accused's presence.
• Conclusions: The Court concluded that the Trial Court was justified in convicting the petitioner based on the available evidence and the petitioner's consistent absence.

Issue 2: Recording Evidence in the Presence of the Accused

• Relevant Legal Framework and Precedents: The Court examined Section 273 of the Cr.P.C. and its applicability in summary trials under the N.I. Act.
• Court's Interpretation and Reasoning: The Court emphasized that the N.I. Act, through its specific provisions, allows for evidence to be recorded in the absence of the accused, as supported by the precedent in MANDVI COOPERATIVE BANK LTD. v. NIMESH B. THAKORE.
• Key Evidence and Findings: The Trial Court recorded the respondent's evidence in the absence of the petitioner, who failed to appear despite being given opportunities.
• Application of Law to Facts: The Court applied the legal provisions and precedents to affirm that the trial could proceed in the petitioner's absence, given the summary nature of the proceedings.
• Treatment of Competing Arguments: The petitioner's reliance on the requirement of presence under Section 273 was deemed inapplicable due to the summary trial provisions.
• Conclusions: The petitioner's contention regarding the necessity of his presence was rejected, affirming the Trial Court's approach.

3. SIGNIFICANT HOLDINGS

• Core Principles Established: The judgment reinforces that summary trials under the N.I. Act do not require the accused's presence for recording evidence, provided the Magistrate has not opted for a summons trial.
• Final Determinations on Each Issue: The Court dismissed the revision petition, upholding the conviction and sentence imposed by the Trial Court and affirmed by the Appellate Court.
• Verbatim Quotes of Crucial Legal Reasoning: The Court cited the precedent in MANDVI COOPERATIVE BANK LTD. v. NIMESH B. THAKORE, emphasizing that evidence could be taken in the absence of the accused under the N.I. Act's summary trial provisions.

The judgment also included practice directions for Magistrates in Karnataka to ensure the expeditious trial of cases under Section 138 of the N.I. Act, addressing issues such as service of summons, recording of evidence, and the conduct of summary trials. These directions aim to streamline the process and reduce delays in the disposal of such cases.