TaxTMI 
TaxTMI 
2025 (1) TMI 1089
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....he Criminal Procedure Code and c) convict the accused'? Background 2. There were two Summary cases filed before the Court of the Metropolitan Magistrate 33rd Court. They are:- a) No. 4001/SS/2016 and b) No. 4081/SS/2016. The present Respondent No. 2 was the Complainant. Whereas there were three accused persons. One is the Company and Nos. 2 and 3 are its Directors. These revisions are filed by accused nos. 2 and 3. The accused issued two cheques dated 29.10.2015 for Rs. 50 Lakhs each, in all amounting to Rs. 1 Crore. They were issued towards discharge of hand loan. On presentation, they were dishonoured and that is why, two private cases were filed. Appearance 3. Initially, accused have appeared before the trial Court. The events are as follows:- a) They furnished bail on 07/07/2017. b) Their plea was also recorded on 07/07/2017. c) However thereafter, they have remained absent and even their advocate. d) Even on one occasion that is on 25/09/2017 bailable warrant for Rs. 5,000/- was issued. e) The Complainant filed an affidavit of examination-in-chief on 06.02.2018. Cross-examination was deferred. ....
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....to proceed in a matter arising under the provisions of Section 138 of the Negotiable Instruments Act and dealing with different stages. It is true in some of the judgments, the Courts have dealt with the issue of importance of 313 statement and whether such statements can be dispensed with and whether such statements can be recorded in non-traditional way. It is important to note that trial magistrate has not recorded the statements of accused and even evidence is also recorded in the absence of the accused. Before going into the legal issues, it will be material to consider how both the Courts below dealt with this issue. Findings by the trial Court 8. In para no. 7, the events are recorded by the trial Court. It consists of recording of plea, claiming exemption on various occasions, not cross-examining the Complainant. The trial Court referred the documents filed by the Complainant (para nos. 8 and 9) and then concluded about issuance of the cheque for discharge of the legal liability and reason for dishonour being account block. Submissions 9. According to learned Advocate Mr. Joshi, trial Court findings are erroneous on the following grounds:- a) the trial Court ....
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....he offences. It is prescribed in the first schedule of the Code. Classification of offences 15. Offenses are classified into two parts. It is :-- a. Part-I deals with offenses under Indian Penal Code. b. Part-II deals with offenses committed under other laws. It is but natural not to specify laws under part-II. That is why test applied by framers of Indian Penal Code is "of punishment" and correlated it to type of offence, entitlement to bail and name of the Court which can conduct trial. As per the punishment prescribed in this part if punishment is upto seven years, the offence is triable by the Court of JMFC. So also as per provisions of Section 142 of the Negotiable Instruments Act, offence under Section 138 is triable by Magistrate. But "what procedure to be followed for trial of offences "is a question"? Such provision is contained in four different chapters. They are as follows:- (i) Chapter XVII (18) It deals with procedure of a trial before court of session. (ii) Chapter XIX (19) It deals with procedure of trial of warrant cases by Magistrates. (iii) Chapter XX (20) It deals with procedure of ....
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....which exempts accused from appearing before the criminal court. They are Sections 205, 317 and 299 of the Criminal Procedure Code. But their individual outcome and the stages at which and the circumstances under which they are to be resorted are different. a) As per Section 205 of the Code while issuing summons the Magistrate may dispense with personal attendance of accused and permit him to appear through his pleader. This contingency has not arisen in this case. b) As per Section 317 of the Code the Magistrate can dispense with the personal attendance of the accused when it is not necessary or when the accused persistently disturbs the proceedings. This question arises at the stage of inquiries and trial, but it can be resorted only when the accused is represented through the pleader. c) Section 299 Court can record the evidence in the absence of the accused when either accused has absconded and there is no immediate prospect of his arrest. 21. In first two contingencies even though presence of the accused is dispensed with, he is represented by his pleader. In those contingencies, inquiry/trial is conducted and accused never make a grievance that it....
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....ive false answer. c) Sub-Section (4) Court may consider (may not consider) the answers given by him in the inquiry / trial (can be put in evidence against him against trial of other offence). 26. If the scheme of Criminal law is considered, there is no provision for filing of reply by the accused to the case of prosecution/ complainant. At the most and if accused desires, he may file written submission/memorandum of arguments as per the provisions of Section 314 of the Code. So also Chapter VII (Part II of the Evidence Act) dealing with "burden of proof" lays down rules about who has to shoulder the burden to prove certain facts. There are certain special provisions in Section 118 and Section 139 of the Negotiable Instruments Act dealing with "presumption". It relieves the Complainant to prove certain fact. At the same time, accused is given right to prove contrary facts. 27. When Section 313 (1) (b) mandates the Court to question the accused, 'can it be said that in these cases the learned Magistrate was justified in not following the said mandate?" 28. Before answering above question, it will be relevant to consider the provisions of Chapter XVII of the Negotiab....
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....nant can be given by way of an affidavit. 30. Chapter-XVII of Negotiable Instruments Act also contain provisions for dealing certain contingencies that arise during pendency of the case. They are:- Power to direct interim compensation. There is provision for awarding compensation in the Criminal Procedure Code, but it is at the time of final conclusion. But as per Section 143-A of the Negotiable Instruments Act, the Court can award interim compensation upto certain limit. Offences to be compoundable As per the provisions of Criminal Procedure Code only the offences prescribed in the schedule can be compounded (permission or with permission of the Magistrate), whereas as per Section 147 of the Negotiable Instruments Act, every offence under Section 138 is compoundable and permission of the Magistrate is not required. 31. If we consider about quoted provision of the Negotiable Instruments Act together we can gather the intention of the Legislature while incorporating these provisions. There is departure from the provisions laid down in Criminal Procedure Code on certain issues. In an entire Criminal administration justice system, right from filing of the complaint t....
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....emption was granted during the trial however prayer for dispensation of the 313 statement was rejected. The Hon'ble Supreme Court took pragmatic view and order of refusing dispensation was set aside. In short, there can be questionnaire prepared, and they can be answered within the time limit. Total dispensation was held not permissible. 36. The judgment of the Hon'ble Supreme Court in case of Basavaraj R. Patil and other Vs. State of Karntaka and Others 2000 (8) SCC 740 is also considered in above judgments. It was case of matrimonial offence. The husband was abroad. His statement under Section 313 was dispensed with and judgment of acquittal was pronounced. The High Court remanded the matter. In a revision preferred by the first informant, the Hon'ble High Court took pragmatic view and prescribed mechanism to deal with such a situation. If accused applies for dispensing with the statement supported by an affidavit, personal presence can be dispensed with and the questionnaire can be prepared and response by accused can be called for. The purpose of recording the statement is reiterated. It is for the benefit of the accused for explaining the circumstance against him. However, ....
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.... but trial Court itself failed to record Section 313 statement. There was emphasis on recording such statement. The conviction was rightly set aside and trial Court was directed to record the statement. 42. Learned Single Judge of this Court in case of Runwal Developers Pvt. Ltd. Vs. Yogesh Mehta and Anr. in Writ Petition No. 632 of 2016 with Writ Petition No. 633 of 2016 has dealt with the contingency of pronouncing judgment by the trial Magistrate in the absence of the accused by ignoring the provisions of the Section 353 (7) and (8) of the Code of Criminal Procedure. There was emphasis on the provisions of Section 353 (7) of the Criminal Procedure Code which protects the judgment delivered by Criminal Court in the absence of the accused. 43. Learned Advocate Mr. Amrut Joshi relied upon the observations in case of Raghunath Rai Bareja and Anr. Vs. Punjab National Bank and Others (2007) 2 SCC 230 on the point of conflict between law and equity and in that case it is held that equity can be held supplementary to law, but it cannot supplant or override the law (para no. 29). It is further held that law will prevail over the equity. He is right. But certainly this Court can int....
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....d. The grievance was accepted. Again it was remanded for 313 statement. Then also accused remained absent. It was held the accused has effectively taken advantage of the legal position. The order of the remand by the Appellate Court was set aside and the judgment of the conviction was sustained. The above sad observations are referred in Prakash Chimanlal Sheth (supra). Conclusion 47. After considering the above observation in all the judgments, I am inclined to take a view, in a case before this Court when it is found out that the accused is not attending the trial, nor sought for dispensing the personal attendance and not represented by the advocate, the trial Magistrate is justified in proceeding in absence of the accused and without recording 313 statement also. However, when such power can be exercised is a question of fact. Trial Court can consider :- a) for how many occasions accused has remained absent b) steps taken by the complainant to secure presence of the accused. c) reason why presence could not be secured. d) whether all modes permissible as per law were exhausted. After ascertaining all factors, then only such power can ....
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....State being subsumed in the victim alone moving a court in cheque bouncing cases, as has been seen by us in the analysis made hereinabove of Chapter XVII of the Negotiable Instruments Act". (para no. 53). 53. The Hon'ble Supreme Court referred various earlier judgments. They are as follows:- a) The observations made in case of Goaplast (P) Limited Vs. Chico Ursula D'souza 2003 (3) SCC 232. The object for introducing Chapter XVII was reiterated. The object is "inculcate faith in the efficacy of banking operations and giving creditability to negotiable instruments in business transactions and in order to promote efficacy of banking operations", page no. 54. b) The object for incorporating chapter as reproduced in case of Vinay Devanna Nayak V/s Ryot Sewa Sahakari Bank Limited 2008 (2) SCC 305 was considered (para no. 55) c) The observations in case of Damodar S. Prabhu V/s. Sayed Babalal H. 2010 (5) SCC 663 relating to compounding provisions contained under Section 147 of the Negotiable Instruments Act were also considered, (para no. 56). d) Furthermore, the observations in case of R. Vijayan Vs. Baby 2012 (1) SCC 260 were considered (para no. 6....
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....his judgment should be given fresh look", (para no. 84). 56. In nutshell if the proceeding under Section 138 of the Negotiable Instruments Act are quasi-criminal in nature, there is reason to believe that one of attribute of criminal trial about mandatory recording of statement under Section 313 of the Criminal Procedure Code is not applicable. So in given set of facts narrated hereinabove, the accused cannot make complaint about causing prejudice if evidence is adduced in his absence and he cannot make complaint of non recording of the statement under Section 313 of the Criminal Procedure Code if they have remained absent without justification. In a given case and after ascertaining certain factors, the Magistrate is justified in proceeding further in absence of accused and even dispense his statement. 57. That is why learned Single Judge of this Court in case of Prakash Chimanlal Sheth (Supra) dispensed with statement to be recorded under Section 313 of the Criminal Procedure Code. This prayer was made before the Metropolitan Magistrate, the accused was not attending the trial. It was rejected. However, learned Single Judge of this Court allowed the same prayer. 58. Abou....