2023 (4) TMI 1395 - HC - Indian Laws

Dishonour of Cheque - correct interpretation of Section 353(7) (8) of Code of Criminal Procedure 1973 - Up to what extent Section 465 of Code of Criminal Procedure 1973 pressed into service? HELD THAT - The object and purpose of the statute under which the accused is being tried are also relevant factors while interpreting Sub-section (7) (8) of Section 353 and Section 465. With the introduction of Sections 143 A and 148 of the Negotiable Instruments Act 1881 the legislature has made it clear that the trial in the cases of dishonour of cheques is to ensure that the faith of ordinary citizens dealing with Negotiable Instruments is strengthened. The endeavour of the legislature while amending the provisions of the Negotiable Instruments Act is to ensure expeditious disposal of a complaint involving dishonour of cheque. Introduction to Section 143(a) 148 is one of such steps taken by the legislature to ensure that the proceedings under Section 138 of Negotiable Instruments Act 1881 are tried expeditiously and effectively. While interpreting Section 353(7)(8) of the Code of Criminal Procedure the Court cannot forget that it deals with complaints under Section 138 of the Negotiable Instruments Act 1881. The Apex Court in the case of K.S. Panduranga Vs. State of Karnataka 2015 (8) TMI 1139 - SUPREME COURT was considering a case where the High Court decided the appeal arising out of conviction under the Prevention of Corruption Act 1947 on merits in the absence of an advocate of the accused. On the other hand the Apex Court distinguishing the judgment in the case of Bani Singh Vs. State of U.P. 1996 (7) TMI 562 - SUPREME COURT held that the Appellate Court could decide a criminal appeal in the absence of counsel for the accused if the counsel remains absent deliberately or shows negligence in appearing. In the facts of the present case it appears from the undisputed facts and material on record that the accused was consistently absent during the trial and at the stage of making oral submissions. The learned Magistrate granted the fair opportunity to the accused by adjourning the delivery of judgment on three occasions. If the accused is not remaining present there is no law which mandates that the Magistrate enforce the presence of the accused by adopting coercive means. Sub-section (7) of Section 353 protects the learned Magistrate from requiring the presence of the accused at the time of delivery of judgment particularly in the proceedings arising out of Section 138 of the Negotiable Instruments Act 1881. Conclusion - The absence of the accused at the time of delivery of judgment in the facts of the case has not resulted in a failure of justice and in view of Subsection (7) of Section 353 of the Code of Criminal Procedure which protects judgment delivered by the Criminal Court in the absence of any party or its pleader the Appellate Court was not justified in setting aside the order of conviction and sentence imposed by the learned Magistrate. The impugned judgment and order passed by the Additional Sessions Judge Greater Mumbai is quashed and set aside - proceeding should be remitted back to the Appellate Court for a decision on merits - Petition allowed.

Summary

The judgment from the Bombay High Court addresses two petitions concerning proceedings under Section 138 of the Negotiable Instruments Act, 1881. The core issues revolve around the interpretation and application of Sections 353(7) and (8) and Section 465 of the Code of Criminal Procedure, 1973, particularly in the context of the accused's absence during the delivery of judgment.

Issues Presented and Considered:

(i) What is the correct interpretation of Section 353(7) and (8) of the Code of Criminal Procedure, 1973?

(ii) To what extent can Section 465 of the Code of Criminal Procedure, 1973, be applied?

Issue-Wise Detailed Analysis:

Interpretation of Section 353(7) and (8) of the Code of Criminal Procedure, 1973:

Section 353 outlines the procedure for delivering judgments in criminal trials. Sub-section (7) states that a judgment is not invalidated by the absence of any party or pleader on the delivery day. Sub-section (8) indicates that Section 353 should not limit the application of Section 465, which addresses errors, omissions, or irregularities that do not result in a failure of justice.

The Court noted that the accused was absent multiple times during the trial and at the judgment delivery. Despite this, the Magistrate adjourned the judgment multiple times, providing ample opportunity for the accused to be present. The Court emphasized that procedural statutes must be adhered to, and the absence of the accused does not invalidate the judgment under Section 353(7).

Application of Section 465 of the Code of Criminal Procedure, 1973:

Section 465 allows for the correction of errors, omissions, or irregularities unless they result in a failure of justice. The Court highlighted that procedural laws are designed to ensure fair trials and should not be used to obstruct justice. The test is whether the accused had a fair trial despite procedural deviations. The Court found that the accused had been given a fair opportunity to defend himself, and his absence did not result in a failure of justice.

The Court also referred to legislative intent, particularly the amendments to the Negotiable Instruments Act, which aim for the expeditious disposal of cases involving dishonored cheques. This legislative intent supports the interpretation that procedural delays should not hinder justice.

Significant Holdings:

The Court held that the absence of the accused at the time of judgment delivery did not result in a failure of justice. The judgment delivered by the Magistrate was protected under Section 353(7), and the Appellate Court's decision to set aside the conviction was unjustified. The Court quashed the Appellate Court's order and remitted the proceedings back to the Appellate Court for a decision on merits, directing an expedited timeline for resolution.

The judgment underscores the principle that procedural statutes are meant to facilitate justice, not impede it. The Court's decision reinforces the importance of adhering to legislative intent and ensuring that procedural technicalities do not obstruct the fair administration of justice.