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2022 (6) TMI 371 - HC - Indian LawsDishonor of Cheque - insufficiency of funds - offence under section 138 is a document based offence or not - Rebuttal of presumption - issuance of summons - reliability on statements of accused - HELD THAT - In the beginning itself, unhesitatingly, it can be stated that the judgment of the trial court is a very good example as to how justice suffers if the judges blindly place reliance on case law without understanding the true purport of the principles laid down in those decisions with utter disregard for the first principles of law - The trial court has drawn presumption in favour of the respondent under sections 118 and 139 of the Negotiable Instruments Act observing that the petitioner being the accused failed to rebut the evidence given by the respondent. Following the judgment of the Supreme Court in the case of Indian Bank Association 2014 (5) TMI 750 - SUPREME COURT , the trial court adopted the affidavit filed by the respondent at the inception as sufficient compliance of evidence to be adduced post summons stage, and of course there is no legal infirmity in it. But the trial court has proceeded on the ground that the Hon'ble Supreme Court in the case of Indian Bank Association has held that there is no need to secure the presence of the accused. This is the wrong committed by the trial court - the case clearly indicate that summons must be sent to the proper address of the accused and that the summons may also be served by sending it to the email address of the accused; and in appropriate cases, the assistance of the police or the nearby court may be sought for service of summons. It is further stated that if the summons served is received back unserved, immediate follow up action must be taken. That means, if summons is not served, the reason for non-service must be ascertained and then summons may be re-issued or warrant may be issued. This para does not indicate that if the accused does not appear before the court in spite of service of summons on him, the trial can be held in his absence. In the case on hand, it is not in dispute that the petitioner did not appear before the court. If the petitioner did not appear having received summons, the trial court ought to have issued warrant and then proclamation for securing his presence. The records do not disclose any such effort being made by the trial court to secure the presence of the accused. This is the blatant error that can be pointed out from the judgment of the trial court. It is trite to observe here that in the Code of Criminal Procedure, there is no provision for keeping an accused ex parte similar to one found in Code of Civil Procedure which provides for placing a defendant ex parte if there is due service of summons or notice on him - The trial court has then dispensed with examination of the accused under section 313 of Cr.P.C. The accused did not appear and examining him under this section did not arise. But the trial court has given some reasons again based on the judgment in Indian Bank Association. The appellate court holds that the conclusion of trial court to dispense with recording of statement under section 311 Cr.P.C. is also supported by another judgment of the Supreme Court in the case of Basavaraj R Patil and Others vs. State of Karnataka and Others 2000 (10) TMI 953 - SUPREME COURT - Therefore appellate court is also of the view that recording of statement of the accused under section 313 Cr.P.C. can be dispensed with. It is thus concluded that trial cannot be held in the absence of an accused unless personal appearance is dispensed with for valid reasons and there cannot be dispensation of examination of an accused under section 313 Cr.P.C. if incriminating evidence appears in the evidence of the witness. Speedy trial does not take the meaning of jumping the stages in criminal trial - revision petition allowed.
Issues Involved:
1. Conducting a trial in the absence of the accused. 2. Compliance with procedural requirements under Sections 251 and 313 of Cr.P.C. 3. Misapplication of Supreme Court judgments by the trial court and the Sessions Court. Detailed Analysis: 1. Conducting a Trial in the Absence of the Accused: The petitioner was convicted by the Judicial Magistrate First Class, Udupi, for offences under Section 138 of the Negotiable Instruments Act due to dishonoured cheques. The Magistrate proceeded with the trial in the absence of the petitioner, based on affidavits filed by the respondent and without securing the petitioner’s presence. The Sessions Judge upheld this conviction, asserting that the offence under Section 138 is document-based and does not require the accused's presence. However, the High Court emphasized that criminal trials must be conducted in the presence of the accused unless their personal appearance is expressly exempted. The trial court should have issued warrants or proclamations to secure the accused's presence if the summons was not responded to. The High Court cited the Supreme Court’s guidelines in Indian Bank Association and the Division Bench judgment in M/s. Mac Charles (I) Limited, which mandate securing the presence of the accused and do not support conducting trials in their absence. 2. Compliance with Procedural Requirements under Sections 251 and 313 of Cr.P.C.: The petitioner argued that the trial court violated procedural law by not recording his plea under Section 251 Cr.P.C. and by dispensing with his examination under Section 313 Cr.P.C. The High Court agreed, stating that the trial court misinterpreted the Supreme Court’s judgment in Indian Bank Association. The trial court’s reliance on this judgment to dispense with the accused’s examination was erroneous. The High Court clarified that Section 273 Cr.P.C. requires evidence to be taken in the presence of the accused, except where expressly provided otherwise, such as under Section 299 Cr.P.C. The appellate court’s reliance on Basavaraj R Patil and M/s. Cheminova India Limited was also misplaced. Basavaraj R Patil discusses alternative methods for obtaining the accused’s statement under special circumstances but does not dispense with the requirement under Section 313 Cr.P.C. Similarly, the focus in Cheminova India Limited was on Section 145 of the Negotiable Instruments Act, not on dispensing with Section 313 Cr.P.C. requirements. 3. Misapplication of Supreme Court Judgments by the Trial Court and the Sessions Court: The High Court criticized the trial court for blindly relying on case law without understanding the principles. The trial court’s judgment lacked a discussion of facts and evidence, relying instead on Supreme Court judgments without proper application. The Sessions Judge’s affirmation of the trial court’s findings was deemed mechanical and lacking in meticulous examination. The High Court highlighted that the trial court’s interpretation of the Supreme Court’s guidelines was incorrect. The guidelines do not support holding trials in the absence of the accused. The High Court stressed that a trial must be conducted in the presence of the accused, and the trial court’s failure to secure the petitioner’s presence was a significant procedural error. Conclusion: The High Court set aside the judgments of the trial court and the Sessions Court. It remanded the cases to the trial court for fresh disposal, directing that the accused be given an opportunity to cross-examine the complainant and adduce defense evidence. The trial court was ordered to expedite the trial, and the accused was directed to pay costs to the complainant in each case. Order: 1. The judgments dated 31.8.2019 in Criminal Appeals 5 to 10/2019 and the judgments in C.C. Nos. 2013/2018, 2015/2018, 2016/2018, 2017/2018, 2018/2018, and 2019/2018 are set aside. 2. The cases are remanded to the III Addl. Judicial Magistrate, First Class, Udupi, for fresh disposal. 3. The parties are to appear before the Magistrate Court on 27.6.2022. 4. The accused is given liberty to apply under Section 145 of the Negotiable Instruments Act for cross-examining the complainant and adduce defense evidence. 5. The accused shall pay costs of Rs. 2,000/- to the complainant in each case. 6. The trial court shall expedite the trial.
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