Karnataka High Court
Sunil Yadav vs Smt Y C Manju on 7 February, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7th DAY OF FEBRUARY, 2025 R
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL REVISION PETITION NO.664/2020
BETWEEN:
1. SUNIL YADAV
S/O SUBRAMANIRAJU
AGED ABOUT 35 YEARS
R/AT NO.83/3,
7TH MAIN, 1ST 'A' CROSS,
JAYANAGAR 2ND BLOCK
BENGALURU - 560 011. ... PETITIONER
(BY SRI. AKASH SUDHAKAR KANDE, ADVOCATE)
AND:
1. SMT. Y.C. MANJU
W/O K. RAJASHEKAR MURHTY
AGED MAJOR
RESIDING AT NO.1312
CHENNAPPA BUILDING
1ST MAIN, 2ND CROSS
GANDHINAGAR, YELAHANKA
BANGALURU - 560 064. ... RESPONDENT
(BY SRI. T.S.CHANDRAPRABHA, ADVOCATE - ABSENT)
THIS CRIMINAL REVISION PETITION IS FILED UNDER
SECTION 397 R/W SECTION 401 OF CR.P.C PRAYING TO
SET ASIDE THE ORDER DATED 01.08.2018 PASSED BY THE
XVIII ADDITIONAL CHIEF METROPOLITAN MAGISTRATE
2
BENGALURU IN C.C.NO.16747/2017 AND JUDGEMENT DATED
22.09.2020 PASSED BY THE LXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH-69) IN
CRL.A.NO.1748/2018.
THIS CRIMINAL REVISION PETITION HAVING BEEN HEARD
AND RESERVED FOR ORDERS ON 01.02.2025 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE H.P.SANDESH
CAV ORDER
1. Heard the learned counsel for revision petitioner
and the learned counsel for the respondent.
2. This revision petition is filed against the
conviction and sentence order in C.C.No.16747/2017 on the
file of XVIII Addl. C.M.M, Bengaluru for the offence
punishable under Section 138 of N.I Act wherein the
accused was sentenced to pay fine of Rs.7,60,000/- and in
default he shall undergo simple imprisonment for a period
of one year and out of compensation Rs.10,000/- has to be
defrayed to the State exchequer and also against the order
of confirmation passed in Crl.A.No.1748/2018 on the file of
LXVIII Addl. City Civil and Sessions Judge, Bengaluru.
3
3. The factual matrix of case of complainant before
the Trial Court that this revision petitioner has availed a
hand loan of Rs.6,00,000/- on 06.10.2015 to meet his
financial commitments and family necessities and had
undertaken to repay the same within six months with
interest at 18% per annum. But, the accused has not kept
up his promise and he demanded the repayment, he issued
a Cheque dated 13.03.2017 for an amount of Rs.6,00,000/-
and on presentation of Cheque, the same was dishonored
with an endorsement 'Funds insufficient'. Thereafter, he had
issued the legal notice making demand to pay the amount
and inspite of service of notice, he did not comply the
demand and hence filed the complaint. The Trial Court took
the cognizance and secured the accused and he did not
plead guilty, but he did not cross examined the PW1 and his
313 statement was dispensed and he was convicted and the
same was challenged before the First Appellate Court and
the First Appellate Court also having appreciated both oral
4
and documentary evidence placed on record, dismissed the
appeal confirming the judgment of the Trial Court, hence
the present revision petition is filed before this Court.
4. The main contention of the counsel appearing for
revision petitioner before this Court is that the Trial Court
committed an error in dispensing the 313 statement and
ought to have been secured and recorded the 313
statement and the same ground was also raised before the
First Appellate Court that he has not been given reasonable
opportunity to defend himself and committed an error in
dispensing the 313 statement of the accused, if he has
afforded an opportunity to defend himself, the result would
be otherwise and counsel prays this Court to remand the
matter to follow the procedure.
5. The counsel in support of his argument he relied
upon the judgment reported in (2022) 4 KarLJ 467 in
case of Mr.G.H.Abdul Kadri V/s Mr.Mohammed Iqbal
wherein this Court having considered the material on
5
record, comes to the conclusion that it is not in dispute that
petitioner did not appear before the Court and held that no
other resource was availed to secure him and record the
evidence in his presence and comes to the conclusion that if
any reason presence of accused cannot be secured, despite
exhausting every mode of service, especially in relation to
offences under special laws, including Negotiable
Instruments Act and if evidence is to be recorded in
absence of accused, law requires to be amended. The
legislature must think of bringing suitable amendment to
Code of Criminal Procedure or to special law to enable Court
to conduct proceedings in the absence of accused. The
amendment, perhaps, may deter unscrupulous elements
who would resort to avoiding service of summons or
execution of warrant against them and set-aside the order
directed the parties to appear before the Magistrate for
disposal of the matter in a fresh and also given liberty to
apply under Section 145 of N.I Act for cross examining the
6
complainant and his witnesses and also given liberty to
adduce defence evidence. The counsel relying upon this
judgment would contend that an opportunity has to be
provided to the petitioner to cross examining the witness
and adduce his evidence. Though complainant has
represented through counsel, the counsel did not appear
before the Court and this Court having noticed the absence
of counsel for respondent to address arguments, taken as
no arguments.
6. Having heard the revision petitioner's counsel
and also the principles laid down in the judgment, the point
that would for consideration of this Court are:
1) Whether this Court can exercise the
revisional jurisdiction that Trial Court
committed an error in dispensing the 313
statement in respect of the revision petitioner
and committed an error in passing conviction
and sentence whether the First Appellate
Court also committed an error in affirming
the judgment and whether it requires
7
interference of this Court exercising the
revisional jurisdiction?
2) What Order?
7. Having considered the material on record, it is
not in dispute that private complaint was filed invoking
section 138 of N.I Act and it is also not in dispute that
Cheque was presented and the same was dishonored and
the revision petitioner did not give any reply even after
service of notice and cognizance was taken and also
summons was served on him but he did not chose to
appear and hence non-bailable warrant was issued and
thereafter he appeared before the Court and obtained the
bail. It is also not in dispute that plea was recorded and an
opportunity was given to cross examine the witness and he
did not cross examine the witness and hence taken as no
cross and 313 statement was dispensed. Thereafter also an
application was also filed under Section 311 by the accused
and the same was allowed on cost of Rs.500/- and even
8
after allowing the application also, not cross examine the
witness and again sought for time and further time was also
granted on further cost of Rs.500/- and both the costs are
not paid and not cross examined the witness. Hence, taken
as no cross and once again 313 statement was dispensed
and also given an opportunity to lead the defense evidence
and after giving opportunity to lead defence evidence when
the sufficient time was given, he did not chose to lead
defence evidence also. Thereafter taken as no defence
evidence and heard the complainant's counsel and passed
the judgment.
8. It is important to note that the Apex Court in the
judgment reported in the year (2022) 11 SCC 705 in case
of Gimpex (P) Ltd V/s Manoj Goel, held that regarding
dishonor of Cheque and nature of offence/proceedings
under, and object of provision, reiterated that the same is
quasi criminal, in that while it arises out of a civil wrong,
the law, however, imposes a criminal penalty in the form of
9
imprisonment or fine, object of enacting Section 138, held,
is to provide security to creditors and instill confidence in
the banking system of the country, further held that, given
its nature and object, it is the compensatory aspect of the
remedy under Section 138 of N.I. Act that should be given
priority as opposed to the punitive aspect. It is categorically
held that the nature of the offence under Section 138 of
N.I. Act is quasi-criminal in that, while it arises out of a civil
wrong, the law, however, imposes a criminal penalty in the
form of imprisonment or fine and also held that Section 138
can be said to a "civil sheep" in a "criminal wolf's " clothing,
as it is the interest of the victim that is sought to be
protected, the larger interest of the State being subsumed
in the victim alone moving a Court in Cheque bouncing
cases. Thus, under the Section 138 of N.I. Act, parties are
encouraged to settle the dispute resulting in ultimate
closure of the case rather than continuing with a protracted
litigation before the Court. This is beneficial for the
10
complainant as it results in early recovery of money;
alteration of the terms of the contract for higher
compensation and avoidance of litigation. Equally, the
accused is benefited as it leads to avoidance of a conviction
and sentence or payment of a fine. It also leads to
unburdening of the judicial system, which has a huge
pendency of complainants filed under Section 138 of the N.I
Act. Having considered the principles laid down in the
judgment this Court would like to analyze the material on
record, this Court already stated what had taken place
before the Trial Court.
9. This Court also would like to rely upon the
judgment of Bombay High Court reported in (2025) SCC
Online Bom 145 in case of Navneet Singh Gogia and
another V/s State of Maharashtra and another and
Bombay High Court also in similar set of facts taken note of
finding of Trial Court and also the First Appellate Court and
also taken note of the factual aspects of that particular
11
case. Even also taken note of issue is whether the question
need to be decided on the basis of earlier settled approach
compulsory recording of statement under Section 313 or
whether question need to be decided by considering the
provisions of chapter 17 of N.I Act and so also taken note of
conduct of Trial of a criminal case and so also specification
of offences. It is also important to note that even Bombay
High Court taken note of Section 143, Section starts with
'non-obstant clause'. But, subsection (1) mentions ' the
provisions of sections 262 to 265 ' (both inclusive ) of the
Code shall, as far as may be, apply to such trials and also
taken note of principles of natural justice as envisaged
under Section 273 of Cr.P.C which mandates evidence has
to be recorded in the presence of the accused except as
otherwise expressly provided. The Bombay High Court also
discussed with regard to Section 205, Section 317 and
Section 299 of Cr.P.C. Even discussed in paragraph No.22
in order to deal with the contingency, cases remained
12
pending for absence of the accused, the legislatures while
enacting the Bharaiya Nagarik Suraksha Sanhita, 2023
have incorporated new provisions dealing procedure to be
adopted when the accused did not appear in spite of
adopting several mode and power of the Court to examine
the accused under Section 313 of Cr.P.C itself lays down
the purpose, the same is enabling the accused personally to
explain any circumstances appearing in the evidence
against him. The Bombay High Court also discussed even
with regard to 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 ' and before answering the same also taken note
of provisions of Negotiable Instruments Act and also taking
of cognizance and mode of service and power of Court to
try cases summarily under Section 260 since the
proceedings under Section 138 of N.I Act is summary
proceedings and also discussed with regard to when the
13
accused is taking advantage of protection granted by
criminal procedure code, how the criminal Court is required
to be in with such a situation in an issue. The Bombay High
Court also taking note of all these facts into consideration,
and even the judgment of the Apex Court in the case of
Indian Bank Association V/s Union of India and so also
TGN Kumar V/s State of Kerala wherein the High Court
of Kerala issued guidelines were also considered and held
that it is prerogative of the Magistrate, the question also
considered in the judgment of the Hon'ble Supreme Court
in case of Basavaraj R.Patil V/s State of Karnataka and
also held that the judgments which have been referred does
not give any guidance how to deal with present controversy
and it only gives general guidance about necessity of
recording Section 313 statement.
10. It is also important to note that the very purpose
of giving an opportunity to the accused to explain the
incriminating circumstances against him and in that way it
14
is for his benefit. But, if Court finds it is causing prejudice to
him by insisting upon physical presence, the Court has
dwelled upon a mechanism to record it in non traditional
way and also an observation is made by this Court in
Crl.R.P.No.1323/2019 in the case of G.H.Abdul Kadari
V/s Mohammed Iqbal has set-aside the conviction and
remanded the matter to the trial Magistrate and granted
liberty to the accused to cross examine the witnesses and
also an observation is made that speedy trial does not
mean jumping the stage in criminal trial. It is also
important to note that there was an emphasis on the
insertion of Sections 143 to 147 of N.I Act for speedy
disposal of such prosecutions. In a case of prosecution
under Section 138 of N.I Act, when the accused remained
absent.
11. This Court also would like to rely upon the
judgment of this Court passed in Crl.R.P.No.437/2010 in
case of R.V.Kulkarni V/s Dakshina Murthy dated
15
28.06.2012 wherein this Court deprecated the conduct with
accused in consistently remaining absent in spite of remand
of the matter by the First Appellate Court for recording the
statement under Section 313 of Cr.P.C and after first
remand in appeal against conviction, the accused remained
absent. The judgment was pronounced and the same was
challenged and even after remand also he was absent and
held that the accused has effectively taken advantage of
the legal positions. The order of the remand by the First
Appellate Court was set-aside and the judgment of the
conviction was sustained wherein also held that the accused
cannot take the advantage. There is no justification having
held that there is failure of justice on account of the
statement of the respondent, accused statement has not
been recorded under Section 313 Cr.P.C. Having due regard
to the fact that this was a summons case and respondent
himself has to blame for non-compliance with the said
16
provision, no fault could be found either with the petitioner
or the Trial Court.
12. The Bombay High Court in the judgment referred
supra, having considered all these factual aspects and also
the principles laid down in the judgments also comes to the
conclusion that when it is found that the accused is not
attending the trail and not sought for dispensing the
personal attendance and not represented by the advocate.
The trail Judge is justified in proceeding in the absence of
the accused and without recording 313 statement and also
in the judgment of Apex Court in case of Mohanraj &
Others v. Shah Brothers Ispat Private Ltd reported in
(2021) 6 SCC 258 has dealt with nature of cases under
Section 138 quasi criminal and further observed that
Section 138 of N.I. Act proceedings was said to be 'civil
sheep' in a 'criminal Wolf's ' and clothing and the same has
referred supra.
17
13. Having taken note of this fact into consideration,
Court has to examine the material on record, the Bombay
High Court also in the case reported in (2022) SCC Online
Bom 10161 in case of Prakash Chimanlal Sheth V/s
T.Ramalinga Nadar and others also with regard to the
same issue is concerned with regard to dispensation of 313
statement is concerned, in detail discussed the same. Even
referring the Section 313 of Cr.P.C in paragraph No.21 of
the judgment and also taken note of law commission and
its 41st report considered the aforesaid judgments of the
Apex Court and various other point of view and then made
the report after reaching the conclusion that in summons
cases, where the personal appearance of the accused has
been dispensed with, either under Section 205 or under
Section 540-A, the Court should have a power to dispense
with his examination and also the said recommendation has
been followed by the parliament and section 313 of the
code, as is presently worded, is the result of it. It would
18
appear prima facie that the court has discretion to dispense
with the physical presence of an accused during such
questioning only in summons cases and in all other cases it
is incumbent on the court to question the accused
personally after closing prosecution evidence.
14. It is also important to note that in the said
judgment also discussed the judgment of Apex Court in the
case of Ramnaresh V/s State of Chattishgarh reported
in (2012) 4 SCC 257 wherein it is observed with regard to
Section 313 that it is obligation to put material evidence to
the accused under Section 313 of Cr.P.C, one of the main
objects of recording a statement under this provision of
Cr.P.C is to give an opportunity to the accused to explain
the circumstances appearing against him as well as to put
forward the defense, if the accused so desires. But, once he
does not avail this opportunity, then consequences in law
must follow. Where the accused take benefit of this
opportunity, then his statement made under Section 313 of
19
Cr.P.C insofar as it support the case of prosecution, can be
used against him for rendering conviction.
15. It is also important to note that considering the
factual aspect of the case as well as proceedings under
Section 138 of N.I. Act, it is settled law that same has to be
concluded expeditiously in the light of guidelines issued by
the Courts from time to time for speedy disposal of the
cases, the scope of Section 142, 143 and 145 of N.I Act, it
was not necessary for the Trial Court to wait for accused to
make his appearance. The Court is empowered to proceed
with the case without recording the statement of the
accused under Section 313 of Cr.P.C. The mere use of word
'may' cannot be held to confer a discretionary power on the
Court to consider or not to consider such defence, since it
constitutes a valuable right of an accused for access to
justice. If the accused has not bothered to remain present
before the Court and also Court has to take note of the fact
that complainant is running from pillar to pillar after filing of
20
the case and when the material discloses that the accused
did not bothered, Court has to exercise discretion and
proceed with the case by dispensing with statement under
Section 313 of the Code. The accused has no regard for
directions of the Court. When such being the case, it is the
discretion of the Magistrate to dispense with the recording
of Section 313 of Cr.P.C.
16. Having considered the principles laid down in the
judgments referred supra, in a case of TGN Kumar V/s
State of Kerala and also the judgment of this Court as
well as Bombay High Court judgment and also Apex Court
judgments referred supra, in keeping the same and also the
judgment of Apex Court in Ramnaresh's case of Supreme
Court as well as Indian Bank Association, the Court has to
take note of the very object in bringing N.I Act particularly
Section 138, Section 143 and Section 147 taken note of the
objectives of amendment Act, 2002 particularly dealing with
cases of dishonor of Cheque and to achieve object of
21
speedy summary trial in view of the amended provisions
and the same has to be given effect.
17. The learned counsel for revision petitioner
though contend that the Trial Court committed an error in
relying upon the Indian Bank case, dispensed the 313
statement and Court has to take note of the material and
also the judgment which is relied upon by the revision
petitioner's counsel in a case reported in (2022) 4 KARLJ
467, Court has to take note of the factual aspects of the
case. The judgment relied upon by this Court which is
referred above in case of Mr.G.H.Abdul Kadri V/s
Mr.Mohammed Iqbal and in that case when the summons
was issued, the same was served but accused did not
appear before the Trial Court. The Trial Court proceeded
without securing him before the Court, but in the case on
hand, it has to be noted that the Trial Court issued the
summons against him and same was served, but he did not
appear and then taken the recourse of issuance of non-
22
bailable warrant. Thereafter, he had appeared before the
Court and even he was subjected for recording of plea and
he did not plead guilty and claims trial. Hence, an
opportunity is given to consider the evidence available on
record under Section 145 of N.I Act, posted the case for
cross-examination of witness, but he did not chose to cross
examine the witness when the case set-down for cross-
examination of PW1. The Trial Court has given an
opportunity, but he did not utilize the opportunity and then
only the Court taken as no cross and also dispensed with
313 statement and even after dispensing 313 statement
also once again an application was filed under Section 311
of Cr.P.C and the same was allowed by imposing cost of
Rs.500/- and posted the case for cross-examination of PW1
and he did not choose to cross examine the witness and
again sought time and time was also given by imposing
further cost of Rs.500/- and he did not choose to cross
examine the witness by paying the cost. Hence, taken as nil
23
and thereafter dispensed the 313 statement once again.
Even after dispensing the 313 statement also case was
posted for defence evidence of the accused and given
several time to lead his defense evidence also, he did not
choose to lead defense evidence also and he did not make
any application again for recalling of witness to cross
examine him and he did not bothered to appear before the
Court. When such being the case, it is not the duty of the
Court to issue non-bailable warrant and secure the accused
and once already taken recourse to secure him by issuing
NBW, each and every stage the Court cannot issue NBW
and secure him and once he claims the trail without
pleading guilty and he shall co-operate and take the
opportunity to cross examine the witness and inspite of
several opportunity was given for cross-examination and
lead his defense evidence, but he did not do so. He did not
avail the said benefit and in view of the discussions of the
judgments which have been referred above by the different
24
High Court as well as the Apex Court judgment, I do not
find any error committed by the Trial Court in dispensing
the 313 statement since he did not avail any opportunity for
cross examine the witness and lead any defense evidence
and then only Court was proceeded to dispense the 313
statement. Even inspite of opportunity was given to lead
defense evidence also, did not avail the opportunity and
hence, now the counsel cannot contend for remand the
matter only on the ground that 313 statement was not
recorded. Both the Bombay High Courts discussed in detail
in both the orders referred supra and this Court also
discussed in R.V.Kulkarni's case for dispense of non
examination of 313 statement as the opportunity was not
availed inspite of sufficient time was given.
18. Having considered the factual aspects of this
case is concerned, not a case for remanding the matter only
on the ground that 313 statement was not recorded and the
same is a discretion of the Magistrate to dispense the same
25
having considered the factual aspects of the case and hence
I do not find any error committed by the Trial Court in
dispensing the same and proceeded against the petitioner
and the same cannot be a whims and fancy of the accused
to seek for remand the matter when the opportunity was
given to him and not utilized the same and no grounds to
set-aside the order and remand the matter for fresh
consideration.
19. In view of the discussions made above, I pass
the following:
ORDER
The Revision Petition is dismissed.
Sd/-
(H.P. SANDESH) JUDGE RHS