9911796707
TMI Blog2005 (6) TMI 574X X X X Extracts X X X X X X X X Extracts X X X X ..... sed No. 1 in that case is the company and the accused Nos.2 to 10 are the Directors of the said company who are alleged to be the persons incharge of the day to day affairs of the said company. The accused Nos. 11 and 12, who are the respondents herein are the employees of the first accused/ company. The first accused/company had issued two cheques in favour of the complainant. They were both dated 23.11.1996. The drawer of these two cheques is the company and they are alleged to have been signed on behalf of the company by its employees viz., the accused Nos. 11 and 12. These two cheques on being presented to the Bank have been dishonoured for want of sufficient funds. Thereupon the complainant got issued a legal notice to the accused which was stated to have been duly served on them on 18.3.1994. The accused did not issue any reply, nor did they comply with the terms of the said legal notice issued by the complainant Consequent thereupon, the complainant instituted a complaint before the trial Court against the accused for having committed the alleged offence under Section 138 of the Negotiable Instruments Act. The trial Court took cognizance of the offence alleged against the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs that the said order has become final and conclusive as none of the parties have challenged the said order. Thereafter the respondents herein stated to have filed a memo furnishing the addresses of the accused Nos. 2 to 9 for issue of summons to them before the trial Court. The complainant has however filed an application to take out paper publication against the accused Nos. 1 to 9. That is to say, the complainant sought for issue of notice to them by publication in the local news paper which was in circulation in the locality. The trial Court granted the prayer made in the application of the complainant. It appears that the said order came to be passed by the trial Court pursuant to the observations made by this Court in the criminal petition filed under Section 482 of Cr.P.C by the respondents in Criminal Petition No. 2906/2004. The said order of the trial Court granting the prayer of the complainant came to be challenged in revision by the respondents herein. The said Revision Petition having been allowed, the complainant has come up before this Court by filing a petition under Section 482 of Cr.P.C. In the petition so filed by the complainant under Section 482 of Cr.P.C. in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance with the procedure prescribed under the Cr.P.C. and the offences under the Negotiable Instalments Act being tried as a summary trial, the accused who remains absent and whose presence could not be secured within a reasonable time, the case as against such accused could be split up in the manner known to law and the proceedings against the other accused who are present before the Court could be proceeded with. He also fairly conceded that such a procedure is permissible in a criminal trial in view of the provisions contained under chapter IV of the Karnataka Criminal Rules of Practice. He further contended that when once the other mode of service of summons to the accused other than the personal service is recognized, the proceedings initiated under Section 138 of the Negotiable Instruments Act can be proceeded expert even in the absence of the accused whose presence could not be secured within a reasonable time and the decision could be rendered expert even against the absentee accused by holding him guilty of the offence under Section 138 of the Negotiable Instruments Act and imposing the alternate sentence of fine instead of substantive sentence of imprisonment, more so, whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e employees. But the Learned Counsel for the respondents would however fairly concede that in a criminal trial the splitting up of a case against the accused whose presence could not be secured within a reasonable time in the manner known to law, is permissible under Chapter IV of the Karnataka Criminal Rules of Practice. Learned Counsel for the respondents has further contended that though there is no specific provision for service of summons to the accused by paper publication, the provisions contained in Section 65 of Cr.P.C as well as Section 144 of the Negotiable Instruments Act gives necessary guidance that such a mode of service of summons to the accused is a recognized mode of service of summons to the accused. Learned Counsel for the respondents would however contend that though substituted service is permissible in a criminal trial under Section 65 of the Cr.P.C, as well as under Section 144 of the Negotiable Instruments Act, the trial of offence charged against the accused cannot be held in his absence and the presence of the accused has to be secured for the purpose of trial by resorting to the coercive measures as contemplated under law and inspite of such coercive mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be resorted to when the service of summons to the accused in the manner as contemplated under Sections 62, 63 or 64 cannot be effective. In other words, when the summons to the accused cannot be served under the due process of law, the same could be served by substituted method of service as contemplated under Section 65 of Cr.P.C. No doubt such a mode of service as prescribed under Section 65 of Cr.P.C could be resorted to only after exhausting the other mode of service of summons under Sections 62, 63 or 64 and the same having been found to be ineffective. But the fact of the matter is that the service of summons to the accused other than the personal service is recognized under law. That is to say, service of summons to an accused even in criminal trial could be effected by substituted service by affixture of one of the duplicates of the summons to some conspicuous part of the house in which the accused ordinarily resides. There cannot be any dispute that such a mode of service is recognised under law even in criminal trials. Hence the answer to Question No. 2 shall be in the affirmative. Similarly Section 144 of the Negotiable Instruments Act recognises the alternate mode ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 273 of Cr.P.C which prescribes that except as otherwise expressly provided, all evidence taken in the course of the trial or other proceeding shall be taken in the presence of the accused, or, when his personal attendance is dispensed with in the presence of his pleader. That means the evidence in a criminal trial cannot be taken in the absence of an accused except as otherwise provided under law. In other words, a criminal trial cannot be held in the absence of an accused or his counsel when the personal presence of the accused is dispensed with in the manner as recognized under the provisions of Cr.P.C. The only exception to this procedure appears to be the one prescribed under Section 126 of Cr.P.C. But no such exception is made in cases where the plea of the accused has to be recorded, the evidence has to be taken at the trial, the statement of the accused has to be recorded and in the event of the accused being found guilty, his presence will be required for passing an order of conviction and if he is to be sentenced with imprisonment, his presence is required. This being the position in a criminal trial, if the accused did not respond even after the service of notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner and hence the proceedings instituted under Section 200 of Cr.P.C for the alleged offence under Section 138 of the Negotiable Instruments Act like any other criminal trial has to be held in the presence of the accused. It is no doubt true that the trial for such offence should be a summary trial. But summary trial does not mean that the trial could be proceeded in the absence of an accused. Section 143 of the Negotiable Instruments Act does not direct the Court to follow the procedure prescribed for trials under the Civil Procedure Code and on the contrary, it directs the Court to follow the procedure prescribed for trials under the Cr.P.C. Hence it is a criminal trial. Even in the case of summary trials, the plea of the accused has to be recorded and if the accused is found guilty after a regular trial, the accused will have to be convicted and substantive sentence of imprisonment or fine has to be imposed. That apart the evidence has to be taken in the presence of the accused. It is equally true that under Section 144 of the Negotiable Instruments Act, the evidence could be adduced in the form of an affidavit. But then that affidavit has to be countered by the other si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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